California employers are limited in what information they may ask job applicants about their criminal history under California Labor Code § 432.7. This specific code section of the California Labor Code has been amended many times by several public mandates presented to California voters since the beginning of the 21st Century.
Both public and private employers in California are prohibited from asking a job applicant to disclose:
- information concerning arrests that did not result in a conviction,
- information concerning referral to pretrial or posttrial diversion programs,
- convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law, or
- information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.
Both public and private employers in California are not prohibited from asking an applicant about, or seeking from any source information regarding, a particular conviction of the applicant if, pursuant to Section 1829 of Title 12 of the United States Code or any other federal law, federal regulation, or state law, any of the following apply:
- The employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
- The applicant would be required to possess or use a firearm in the course of their employment.
- An individual with that particular conviction is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
- The employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
Under this code section, “particular conviction” means a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.
Statutory exceptions exist related to certain fields. For example, health care facilities may ask job applicants with regular access to patients to disclose whether they are convicted sex offenders under § 290 of the California Penal Code. Job applicants who, if hired, will have access to drugs and medication, may be asked to disclose an arrest under any section specified in § 11590 of the California Health and Safety Code. Employers seeking disclosure of offense history must provide applicants with a list describing the specific offenses under § 11590 of the Health and Safety Code or § 290 of the Penal Code for which disclosure is sought.
California Labor Code § 432.7 does not prohibit public and private employers 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 such 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.
For over forty years, the Dolan Law Offices have provided Californians with post-conviction services that clear their criminal record to further solidify their future as productive, law-abiding members of the Coachella Valley community. The attorneys at the Dolan Law Offices are experienced in helping California residents clear their criminal records. Call us today at (760) 775-3739 or find out more online here.
