Privacy Issues in the Workplace

NOTE: While the statute does not expressly address this issue, we believe that Government Code section 12952 does not apply to community college district and K-12 school districts. Both community college districts and K-12 districts are required to fingerprint all employees and thus, we can reasonably conclude that they are required by law to conduct a conviction history background check on employees. Thus, they would be excluded from the restrictions on considering conviction history under Government Code section 12952(d)(4), which excludes employers required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. 99

2. C RIMINAL R ECORDS AN E MPLOYER M UST N OT S EEK OR U SE

a. Use of Certain Records Normally Banned from Consideration for Employment Under Labor Code section 432.7(a)(1) employers may not ask applicants or current employees to provide, and cannot refuse 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.

 Marijuana convictions more than two years old 100 .

 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.

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. 101 In addition, Labor Code section 432.7(m) states that the prohibition (under Labor Code section 432.7(a)(1)) does not prohibit an employer from asking an applicant about a criminal conviction “if. . . [t]he employer is required by law to obtain information regarding a conviction of an applicant.” 102 Thus, Labor Code section 432.7(a)(1) likely does not apply to certificated and classified positions of school districts and community college districts, where the Education Code mandates criminal background checks for those positions. 103 As there is not case law or statutory provision that directly addresses school district and community college district personnel under its provisions, we recommend that such districts only seek conviction information under Labor Code section 432.7(m) for those offenses that disqualify an applicant from employment under the Education Code.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 32