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Can I get Fired for Having a Criminal Record in California?

Posted by Neil Shouse | Aug 11, 2015 | 0 Comments

A criminal record can make it difficult to find a job. But is a criminal history grounds for getting fired from a job in California? Unfortunately, the answer isn't so black and white.

Employers are perfectly within their rights to request permission to perform criminal background checks on employees and job applicants. An employer also has the right to make decisions to hire or fire based upon the results of those background checks. However, there are some legal limitations to that right.

The Fair Credit Reporting Act (FCRA) is a federal law which imposes obligations on employers who wish to perform criminal background checks on applicants and employees. Under the FCRA, employers are required to:

  • get an applicant/employee's prior written consent;
  • notify the applicant/employee if the employer intends to disqualify/fire him or her based on the results of the report;
  • provide the applicant with a copy of the report; and
  • notify the applicant/employee after the employer makes a final employment decision based on the results of the report.
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Criminal background checks in employment

Additionally, the Equal Employment Opportunity Commission (EEOC) has stated that employers that exclude all applicants with criminal records potentially may be screening out disproportionate numbers of minority individuals. This constitutes illegal employment discrimination in violation of Title VII of the Civil Rights Act of 1964.

The EEOC has issued guidance to employers about the protocol that should be followed when performing criminal background checks on applicants and employees.  To avoid illegal employment discrimination when conducting criminal background checks, employers must consider:

  • the nature and gravity of the criminal offense or conduct;
  • how much time has passed since the offense or sentence; and
  • the nature of the job.

In the state of California, employers are not permitted to ask employees about prior arrests which never lead to any convictions nor seek records relating to those arrests. They are also not allowed to inquire about certain older marijuana offenses or an employee's referral to or participation in any pretrial or post-trial diversion programs. California employers are also prohibited from asking employees about convictions that have been sealed, expunged, or statutorily eradicated.

However, employers are legally permitted to ask employees about arrests for which there is a pending criminal legal proceeding. Additionally, employers may ask questions about any convictions relevant to the job.

Contact us if you have any further questions or concerns related to your criminal record.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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