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6. L ABOR C ODE § 432.7 R ESTRICTS THE U SE OF C RIMINAL R ECORDS

California law restricts access to and use of information about job applicants’ criminal histories. Labor Code section 432.7 prohibits employers from asking an applicant to disclose or considering information related to a criminal conviction that has been judicially sealed or ordered sealed. However, section 432.7 does not prohibit employers from asking about criminal convictions that have been judicially sealed or expunged if the employer is required to obtain such criminal conviction information pursuant to state or federal law. Labor Code section 432.7 establishes two distinct classes of criminal records: those that an employer may not use and those that it may use.

Section 432.7 prohibits employers from asking applicants or current employees to provide, and from refusing to hire or promote them, on the basis of any of the following information:

 An arrest or detention that did not result in conviction. A conviction is a guilty or nolo contendere (no contest) plea, criminal conviction, or other finding of guilt. A conviction does not require a criminal sentence or other punishment.

 Referral to and participation in any pretrial or post-trial diversion program.

There are numerous forms of diversion programs provided under the Penal Code, Vehicle Code and elsewhere. Labor Code section 432.7 also prohibits law enforcement agencies from providing either of the above types of information to prospective employers. An intentional violation of section 432.7 is a misdemeanor. Unsuccessful job applicants or current employees denied promotions, assignments or other benefits based on such information may sue for damages and attorney’s fees. They may also obtain treble damages if they prove that the employer intentionally obtained or used the prohibited information. 7. U SE OF M ARIJUANA C ONVICTIONS THAT ARE M ORE THAN T WO Y EARS O LD Under Labor Code section 432.8, prospective employers are prohibited from considering marijuana related convictions which are more than two years old. Specifically, agencies may not consider marijuana related convictions for violations of subdivision (b) or (c) of Section 11357 of the Health and Safety Code or a statutory predecessor thereof, or subdivision (c) of Section 11360 of the Health and Safety Code, or Section 11364, 11365, or 11550 as they related to marijuana before January 1, 1976, or a statutory predecessor thereof.

In Starbucks v. Superior Court (Lords), 308 the appellate court reaffirmed that an employer may not, in any way, solicit information regarding marijuana convictions that are more than two years old. Starbucks had one application that it used in every state and overseas. The application included a question asking if the applicant had been convicted of a crime in the past seven years. The reverse side of the application included various disclaimers for different states, including a disclaimer from California stating that the applicant was not required to disclose marijuana convictions older than two years. The court held that the application violated Labor Code section 432.8. Although the disclaimer

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