Finding the Facts - Disciplinary and Harassment Investigation

2. E MPLOYMENT D ECISIONS B ASED UPON C RIMINAL R ECORDS Generally, an employer cannot base employment decisions upon off-duty criminal convictions. Penal Code § 11105, governing criminal record data, allows the Attorney General to furnish summary criminal history information to certain entities including “any city or county or official thereof when access is needed in order to assist such district, officer or official in fulfilling employment certification, or licensing duties, and when such access is specifically authorized by the city council ordinance, or regulation that expressly refers to specific criminal conduct applicable to the subject person and contains requirements or exclusions or both, expressly based on such specified criminal conduct.” 137 In other words, a public entity may access certain criminal information with proper authorization from the governing board of that entity. However, the public district would have to show a specific connection between the criminal conduct resulting in a conviction, and the impact on the offender’s ability to perform his or her job duties.

An employer should consider these factors, as well, in making an employment decision:

 The nature and seriousness of the offense;

 The circumstances surrounding the conviction;

 The length of time elapsed since the conviction;

 The age of the person at the time of the conviction;

 The presence or absence of rehabilitation or efforts at rehabilitation; and

 Contributing social or environmental conditions.

H. C ONCLUDING THE I NVESTIGATION

At the completion of the “gathering the facts” phase of the investigation, the investigator should have:

 Gathered and reviewed all relevant documents;

 Gathered and reviewed all physical evidence; and

 Conducted interviews with the complainant, the alleged harasser, and all percipient witnesses.

The binder should contain copies of all documents, physical evidence, and notes of each interview or transcriptions of interviews that were tape recorded. The investigator now has the responsibility of determining whether or not the district’s policy was violated.

LCW Practice Advisor

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