San Francisco Public Defender

GETTING A JOB

Can public and private employers in California ask job applicants about arrests not leading to convictions?

No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction. Cal. Labor Code §432.7(a).

Arrests for which diversion was ordered and followed by dismissal should not be considered. Cal. Penal Code § 13203(c)1-3.

Note that law enforcement authorities (Cal. Penal Code § 13203) and health care facilities (Cal. Labor Code § 432.7) may consider certain arrests not leading to convictions.

What is the difference between public and private employers in California in regards to employer background checks?

In California, criminal histories or “RAP sheets” compiled by law enforcement agencies are not public record. Only certain public employers such as public utilities, law enforcement, security guard firms, and childcare facilities have access to this information. (California Penal Code §11105, 13300). Private employers generally do not have access to “RAP sheets” and often conduct their own investigation in this area or hire private criminal background screening companies to obtain this information.

If an employer conducts a criminal background check using a private screening company, California law requires the employer to notify the applicant, obtain consent, and allow the applicant to obtain a copy of the report within 3 days of the date the employer receives it. California law also requires an employer to allow applicants to receive copies of any public records the employer reviews on its own regarding the applicant’s criminal history. In addition, the federal Fair Credit Reporting Act requires employers to provide you with a copy of the criminal record report and a summary of your rights before taking any adverse employment action (refusing to hire, termination) based on the report.

WHAT CAN I DO?

• Get an updated “RAP sheet” to make sure it is correct. You can obtain a copy ($5.00 fee) at:
  Hall of Justice
  850 Bryant Street, Room 475
  San Francisco, CA
• When you have had your conviction expunged you can legally state on an application that you were never convicted of that crime. If your conviction is sealed and destroyed pursuant to California Penal Code § 851.80, you can legally state that you were never arrested for that crime. However, the expunged conviction will still show up on a RAP sheet, so while you are not legally required to admit the conviction, you might want to consider explaining the conviction and the expungement to an employer.
• Keep a copy of the court record to provide to potential employers, if necessary to clear up misunderstandings. A court record can be obtained from the court clerk, also located at the Hall of Justice, Room 101.
• If you have been denied state employment based on a criminal conviction you may be able to challenge the decision in an administrative appeal.
• If your potential employer has illegally asked you about arrests not leading to conviction you may file a complaint with the Department of Fair Employment & Housing.
• If you feel your arrest record was improperly used, you may have a claim for invasion of privacy under the California Constitution. You may (1) contact a lawyer, or (2) contact agencies listed at the end of this brochure (Cal. Civ. Code Section 1798.53, Cal. Civ. Pro. Code Sec 340).
• If you are African American or Latino and an employer fires you or refuses to hire you based on your criminal record, you may also have rights under employment discrimination laws. In order to protect against employer screening policies that often end up hurting more minorities than whites, an employer is not allowed to reject anyone based on a conviction record unless the employer can justify its decision based on: (1) the nature and seriousness of the offense; (2) the time that has passed since the convictions or completion of your sentence; and (3) the nature of the job. If you fall into one of those racial groups, the employer has at least 15 employees, and you feel the employer’s decision or policy used against you is discriminatory, you can file a charge of discrimination with your local Equal Employment Opportunity Commission (EEOC) office. A charge must be filed within 300 days of the action you are complaining about. Contact the National Employment Law Project at 510-409-2427.

RESOURCES

• California State Personnel Board
  Appeals Division
  801 Capitol Mall, MS #22
  P.O Box 944201
  Sacramento CA 94244-2010
  (916) 653-0544
• Department of Fair Employment & Housing
  San Francisco District Office
  455 Golden Gate Avenue, Suite 7600
  San Francisco, CA 94102
  (415) 703-4175
• Equal Employment Opportunity Commission (EEOC)
  San Francisco District Office
  350 The Embarcadero, Suite 500
  San Francisco, CA 94105-1260
  (800) 669-4000; TTY (800) 669-6820
• The Legal Aid Society - Employment Law Center
  600 Harrison Street, Suite 120
  San Francisco, CA 94107
  (415) 864-8208
  Email: info@las-elc.org
• Social Justice Law Project
  510 16th St., Suite 201
  Oakland, CA 94612
  (510) 893-1146
  E-Mail: socialjusticelaw@hotmail.com
• Women’s Employment Rights Clinic
  Golden Gate University School of Law
  536 Mission Street
  San Francisco, CA 94105
  (415) 442-6647

(Information obtained from “Employment Discrimination and What to do About it,” by Legal Action Center, www.LAC.org)

After Clean Slate Brochure - PDF version of this information