Protections Under California Labor Code 432.7 et seq. Under California law, private employers cannot question job applicants about any arrest or detention that has not resulted in conviction of a crime or participation in a diversion program, or any conviction that has been judicially dismissed or ordered sealed pursuant to law; nor may they use the record of such an arrest, detention, diversion program or conviction as a factor in determining any condition of employment, such as hiring, firing, promotion, compensation, etc. However, an employer may ask a job applicant or current employee about an arrest for which the applicant or employee is out on bail or on his or her own recognizance. (Lab Code. section 432.7(a); Garcia-Brower v Premier Automotive Imports of CA, LLC (2020). For purposes of Labor Code 432.7, a conviction include a pleaa, verdict, or finding of guilt, regardless of whether a sentence is impose by the court.
The law does not prohibit employers, including public agencies, private individuals, and corporations, from inquiring or seeking information about a “particular conviction,” if, under state or federal law, (a) the employer is required by law to obtain such information regardless of whether the conviction was expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; or (b) the applicant would be required to possess or use a firearm during the course of employment; or (c) an individual with that particular conviction is prohibited from holding the position; or (d) the employer is prohibited by law from hiring an applicant who has that particular conviction regardless of whether the conviction was expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. The law also doesn’t prohibit an employer, whether a public agency or private individual or corporation, required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements, or to prohibit the employer from seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures otherwise provided for under federal, state, or local law.
Although an employer may ask an employee about an arrest for which the employee is awaiting trial, the arrest record alone is not ground for dismissal or discipline. “To hold otherwise would violate the fundamental presumption of a suspect’s innocence prior to the contrary being proved.” Pitman v City of Oakland (1988).
Protections Under California’s “Ban The Box” Law
The California Fair Employment and Housing Act’s “Ban the Box” law requires employers with five or more employees to comply with certain procedures regarding the use of criminal history information for hiring purposes. Employers are prohibited from making any inquiry into conviction history (including asking such questions on job applications or ordering a criminal background check report) until after a conditional employment offer has been extended to the applicant (unless a statutory exception applies). Employers are also prohibited from considering an arrest not followed by conviction (with some exceptions), convictions that have been sealed, expunged, or eradicated, or referrals/participations in pre- or post-trial diversion programs. Gov. Code 12952.
When considering conviction history as a basis to deny employment, employers must make an individualized assessment and consider a number of factors in determining whether the conviction history “has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” Employers must provide written notice to applicants who are preliminarily denied employment based on conviction history and allow applicants five business days to respond to the notice before the employer makes a final decision. Should an employer make a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer must notify the applicant in writing. Gov. Code section 12952(c)(1), (5).
Various jurisdiction within California may have additional protections for applicants for employment. For instance,
San Francisco’s Fair Chance Ordinance also generally prohibits employers with five or more employees from asking about or using convictions for decriminalized behavior, including convictions for the noncommercial use and cultivation of cannabis.
The same restrictions apply to questioning job applicants about conviction of certain Health and Safety Code offenses involving marijuana more than two years after the conviction. Thus, in Starbucks Corp. v Sup. Court (2008), the court held that an application requiring disclosure of all convictions within past 7 years violated statute where disclaimer regarding marijuana-related convictions more than 2 years old was not “conspicuous and clear”.
However, federal law permits retail pharmacies to ask job applicants whether they have ever been convicted of any crime involving controlled substances, nonwithstanding Stat law. 21 USS sec 830(e)(1)(G); Rankin v Longs Drug Stores Calif., Inc (2009).