Q May a California employer consider a worker’s arrest record in making a hiring decision?
A Under Section 432.7 of the California Labor Code, employers may not ask applicants to disclose “an arrest or detention that did not result in conviction.” Moreover, the statute specifically prohibits employers from seeking to obtain or using an applicant’s or employee’s arrest record in making an employment decision.
Employers should note that the statute does provide an exception for criminal justice agencies and health facilities (if the position involves access to patients or access to drugs and medication). Additionally, all employers may ask an employee or applicant about pending criminal charges.
An employer that violates this statute may be held liable for actual damages, costs and attorneys’ fees. If the employer is found to have intentionally violated the law, the company can be held liable for treble damages.
In addition to potential liability under state law, employers should note that the federal EEOC takes the position that consideration of arrest (and possibly criminal conviction information) can give rise to a race-discrimination claim. Using such information is discriminatory, the EEOC reasons, because, statistically, minorities are more likely to have an arrest or conviction record than nonminorities.