Privacy Issues in the Workplace

NOTE: Even if Section 432.7, subdivision (m) can be interpreted as exempting school districts and community college district from the provisions of 432.7(a)(1) as it applies to offenses that disqualify an applicant from employment under the Education Code, the exception does not apply to juvenile offense history. That is, Section 432.7, subdivision (a)(3) exempts adjudications by a juvenile court or any other court order or action taken with respect to a person who is under the jurisdiction of a juvenile court, from the definition of “conviction.” This means that any convictions in juvenile court would not be a conviction for the purpose of providing employers with access to information about convictions. In addition, a separate section, Section 432.7, subdivision (a)(2) prevents an employer from asking applicants or employees about arrests, detentions, processing, diversions, supervisions, adjudications, and court dispositions that occurred in juvenile court. As the exception under Section 432.7, subdivision (m) only applies to the provisions of 432.7, subdivision (a)(1) and not to the provisions of 432.7, subdivisions (a)(2) or (a)(3), the exception under (m) would not permit school districts or community college districts to view juvenile court history for employment purposes.

Applications for employee should clearly and ambiguously direct applicants not to disclose information regarding arrests that did not result in conviction and marijuana convictions more than two years old. 103 California Labor Code sections 432.7 and 432.8 prohibit employers from requiring that records of arrests that did not result in conviction and marijuana convictions more than two years old be listed on the initial application form. This prohibition does not apply to persons applying for jobs as peace officers, with criminal justice agencies, and with certain health facilities as defined in Health and Safety Code section 1250. 104 While it might be tempting to use your agency’s police department as a resource to learn this information, it is imperative that you refrain from doing so. Both the police department employees who provide the information and any individuals in the agency who use the information against job applicants could face civil and criminal sanctions. 105 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.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 32