Privacy Issues in the Workplace

“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 employees 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. 104 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. 105 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. 106 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. a. Law Enforcement Police departments, the Department of Justice and any other agency employing peace officers may obtain and use arrest information when deciding whether to hire peace officer candidates. Section 432.7 recognizes that peace officers are held to a higher standard than other classes of employees. However, these agencies may not automatically dismiss applicants because they have an arrest record. The arrest might have been an isolated incident, clearly in error or not cause for concern for any of a number of reasons. Law enforcement agencies should conduct their own investigation into the arrest. At a minimum the agency should discuss the arrest information with the applicant to attempt to determine the facts before making any decision. 3. C RIMINAL R ECORDS AN E MPLOYER M UST O BTAIN

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