Privacy Issues in the Community College Workplace

Likewise, Penal Code section 11105.3 provides that an employer may request from the Department of Justice records of convictions and/or arrests pending adjudication for specified offenses (including sex offenses against minors, theft, robbery, burglary, or any felony) with regard to an applicant for a position in which the applicant would have supervisory or disciplinary power over a minor or any person under his or her care. d. Sex Crimes and Controlled Substance Offenses - Schools Education Code sections 87405 and 88022 prohibit districts from employing or retaining individuals convicted of sex crimes or controlled substance offenses. Education Code section 87010 defines “sex crimes” and Education Code section 87011 defines “controlled substance offense.” If, however, a court reverses an individual’s conviction and acquits the individual of the offense in a new trial; or a district attorney dismisses the charges against the individual, a district may employ the individual. In addition, a district may not deny or refuse to retain an individual solely on the basis that the individual was convicted of a sex or controlled substance offense if: (1) the individual obtained or applied for a certificate of rehabilitation and pardon; (2) the individual completed probation; and (3) the information or accusation has been dismissed. A district, however, may employ or retain an individual convicted of a sex or controlled substance offense if: (1) the governing board of the district determines that the individual has been rehabilitated for at least five years; (2) the individual received a certificate of rehabilitation and pardon; or (3) the accusation or information against the individual was dismissed and the individual has been released from all disabilities and penalties resulting from the offense. Moreover, Education Code sections 87405 and 88022 permit a district to employ an individual convicted of a controlled substance offense if the district’s governing board determines that the individual has been rehabilitated for at least five years. Aside from sex and controlled substance convictions, a district should not automatically disqualify applicants with criminal records. Rejecting all applicants with criminal records might disproportionately impact individuals within a protected class and lead to a disparate impact race discrimination lawsuit against a district. Districts should consider an applicant’s individual circumstances in determining whether the conviction is sufficiently serious, recent, and job related enough to disqualify the applicant from the job. 4. C RIMINAL R ECORDS AN E MPLOYER M AY O BTAIN The California Penal Code permits public agencies to obtain criminal history information from the Department of Justice. Penal Code section 11105 requires the Department of Justice to maintain the following information about individuals with criminal records:

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Name,

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Date of birth,

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 33