California Employment Law

 

California Employment Law
 Updated 10/2016

Government Resources

The United States Department of Labor eLaw Advisors
United States Department of Labor

California law places restrictions on the prospective employer’s ability to ask about certain criminal records while protecting the applicant from any requirement to disclose certain arrest information.

Arrest:

Employers cannot ask job applicants to disclose information about arrests or detentions that did no t result in a conviction or that resulted in a referral to and participation in a pre- or post-trial diversion program (e.g., a drug treatment program). Employers also are prohibited from seeking such information from any source. If an employer does obtain this information, it cannot use it as a factor in determining any condition of employment, including hiring, promotion, or termination. The statute does not prevent an employer from asking an employee or applicant about an arrest for which the individual is out on bail or on his or her own recognizance pending trial. Cal. Lab. Code § 432.7. The statute is silent on how the employer can use such pending arrest information obtained, although at least one California court has held that the statute does not authorize an employer to utilize an arrest alone as a  basis for disciplinary action. Pitman v. City of Oakland

, 197 Cal.

App. 3d 1037 (1988). Under the California Fair Employment &Housing Commission’s Regulations, unless otherwise provided by law, it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning any arrest or detention which did not result in conviction or  any arrest for which a pre-trial diversion program has been successfully completed. Cal. Code Regs., tit. 2, § 7

287.4.are prohibited from asking an applicant to disclose information obtained as ahiring factor. If an employer does obtain this information, it cannot use it as a factor in determining any condition of employment, including hiring, promotion, or termination. Cal.Lab. Code § 432.8. Employers also cannot ask about convictionsthat have been sealed, expunged, or statutorily eradicated or about any misdemeanor convictions for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed. Cal. Code Regs.

App. 3d 1037 (1988). Under the California Fair Employment &Housing Commission’s Regulations, unless otherwise provided by law, it is unlawful for an employer or other covered entity to inquire or seek information regarding any applicant concerning any arrest or detention which did not result in conviction or  any arrest for which a pre-trial diversion program has been successfully completed. Cal. Code Regs., tit. 2, § 7

287.4.

California’s Department of Fair Employment & Housing’s Pre-employment Inquiry Guidelines DFEH-161 also provide that pre-employment inquiries regarding arrests not resulting inconvictions are unacceptable. Conviction:

Employers can inquire about an applicant’s prior criminal convictions if the inquiry is accompanied by a statement that such a conviction will not necessarily disqualify the applicant from employment. California Pre-employment Inquiry Guidelines

DFEH-161.

Employers cannot ask applicants about convictions for certain marijuana-related convictions if the convictions are more than two years old. Cal. Lab. Code § 432.8 Employers are prohibited from asking an applicant to disclose information obtained as ahiring factor. If an employer does obtain this information, it cannot use it as a factor in determining any condition of employment, including hiring, promotion, or termination. Cal.Lab. Code § 432.8. Employers also cannot ask about convictionsthat have been sealed, expunged, or statutorily eradicated or about any misdemeanor convictions for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed. Cal. Code Regs.

, tit. 2, §

7287.4; California Pre-employment Inquiry Guideline

sDFEH-161Employers cannot require an employee or applicant to obtain a copy of his or her own criminal record. Cal. Penal


 

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