Employment Law Perspective

Note:All articles in this edition refer to the Guest Editor’s column found here.

Most private employers do NOT have the right to request an employee’s criminal history. In fact, unauthorized use of an employee’s private information is a crime. However, there are exceptions. Depending on the construction work Stefan does for his company, there are some important exceptions to this rule found in Penal Code § 11105, the most common:

  • Law enforcement personnel, police officers or parole and probation officers, may see criminal history if it is necessary for their jobs. People involved in a criminal case, such as court officers, judges, prosecutors, and defense attorneys, may see criminal history if one is a party or a witness for a case.
    Government employers, such as a job with the city or state, may view criminal history in considering application for a job if authorized by law or regulation. (Labor Code § 432.7.)
  • Public utilities, such as nuclear power facilities, may be able to request criminal history.
  • Some organizations are considered “agencies of the state,” and can see records if permitted by law or regulation. This may include applications for licenses or certifications, such as entrance to the California Bar or an application for a concessionaire’s license.  *This may apply to Stefan.
  • Some laws expressly allow employers, such as schools or eldercare agencies, to see criminal history information to screen job applicants. To have access under this exception, the law must (1) explicitly authorize the employer to see criminal history, (2) refer to specific criminal conduct (i.e., specific crimes, not just any convictions), and (3) require the employer act on the existence of such information.
  • Employers can also get access to some records through a general background check, using public record and databases kept by courts, news reporting agencies, or for-profit information-gathering services.

It is important for Stefan to keep in mind that should a position he is in or if he is seeking a promotion require a background check including his criminal history, this will include arrests even if Stefan was not charged and/or not convicted.

As Stefan is a Licensed Contractor he should be aware of special provisions in relation thereto. Pursuant to California law, all Contractors State License Board (CSLB) license applicants are required to submit a full set of fingerprints for criminal background check. Fingerprints are compared to the records of the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) to determine if the applicant has a criminal history. http://www.cslb.ca.gov/About_US/FAQS/Fingerprint_Q_And_A.aspx.

Under California Labor Code § 432.7, in applying for a job, or being considered for promotion, termination, or placement in a job training program, an employer cannot ask about any arrests that don’t result in a conviction, or any arrests that led to participation in a diversion program (such as drug rehabilitation) – something which ultimately may apply to Stefan. Further, an employer is also prohibited from trying to find out from other sources whether one has been arrested. If an employer somehow learns of the arrest record, § 432.7 prohibits it from considering any arrest that did not lead to a conviction, or any arrest that led to a diversion program, in making decisions regarding hiring, firing or promotion.  There are some important exceptions to this general rule: Arrests pending trial; law enforcement positions; and, health facility positions.

It is legal for an employer to ask about all convictions, including misdemeanors as well as felonies. However, employers normally ask only about past felonies. If a conviction was sealed, an employee does not have to tell the employer about it. An employer will not have access to the sealed information. If a conviction was , it is up to the employee whether or not to tell future employers. Keep in mind that, if an employer runs a background check, it may see a conviction and that the conviction was dismissed. To avoid having a potential employer question whether someone was truthful in their application regarding the previous conviction, one may consider answering any questions about whether had any past convictions with “Yes—conviction dismissed.”

There are many manners in which this arrest may or may not impact Stefan in the workplace, he must stay well informed and consider his options carefully.

Employment Law implications for Ms. Elaine Knight

Elaine Knight is a full time county employee.  Though the hospital noted alcohol on her breath it does not appear she was arrested. Thus, at this time, the concerns which face Elaine are that of a mother and wife who may need to take time off work for court appearances and the like.

California Labor Code Section 230(b) protects an employee who is a victim of a crime or who takes time off to appear in court to comply with a subpoena or other court order as a witness to a judicial proceeding.

Further, California Labor Code Section 230.5 protects an employee who is a victim of a listed offense for taking time off from work, to appear in court to be heard at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. A victim is any person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act. The term “victim” also includes the person’s spouse, parent, child, sibling, or guardian. (The complaint must be filed within one year from the date of occurrence of the violation.)

There are a great many additional rules, codes and/or regulations permitting time off work for the child and/or the spouse, it simply depends which path Elaine decides to take time off work in this matter, as a mother and/or wife.