March 25, 2020

If you have been arrested, you may be worried about your employer finding out, and terminating your employment on the basis of this arrest.  However, under California law (subject to certain specified exceptions), it is unlawful for an employer to consider any arrest or detention that did not result in conviction, information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or a conviction that has been judicially dismissed or ordered sealed pursuant to law, in determining any condition of employment.  This means that your employer cannot use the fact that you were arrested (or that you have a prior conviction that has been judicially dismissed or ordered sealed) as a factor in employment decisions, such as hiring, firing, promoting, or demoting, among other things.  [Lab. Code § 432.7.]

A “conviction” under this law includes a plea, verdict, or finding of guilt regardless of whether a sentence is imposed by the court.

There are certain exceptions to this law of which you should be aware.  If you were arrested and are out on bail or have been released on your own recognizance pending trial, your employer may ask you about that.  This law also does not apply where an employer is required to inquire into a particular category of criminal offenses, where you would be required to possess or use a firearm in the course of your employment, or where the employer is prohibited from hiring an individual with a particular conviction (or you are prohibited from holding that position with that conviction).  There are also exceptions for government agencies employing peace officers and for health facilities.

If you are currently employed and your employer takes adverse action against you because of an arrest or detention that did not result in conviction, information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or a conviction that has been judicially dismissed or ordered sealed pursuant to law, you can bring a lawsuit against your employer, and recover your actual damages.

If you are an applicant for employment, and you were not hired because of a violation of the above, you can recover actual damages or $200 (whichever is greater) plus reasonable attorneys’ fees and costs.  Intentional violations entitle applicants to triple damages or $500 (whichever is greater) plus reasonable attorneys’ fees and costs.  An intentional violation is also considered a misdemeanor.

If you believe you have been discriminated against at work because of an arrest or detention that did not result in conviction, information concerning a referral to, and participation in, any pretrial or post-trial diversion program, or a conviction that has been judicially dismissed or ordered sealed pursuant to law, please give us a call.

If you are an employer seeking guidance, we can help.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.