Privacy Issues in the Community College Workplace

While the statute does not expressly address this issue, 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. 95 2 . C RIMINAL R ECORDS AN E MPLOYER M UST N OT S EEK OR U SE Under Labor Code section 432.7 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 96 .

 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 section also prohibits law enforcement agencies from providing either of the above types of information to prospective employers.

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. 97 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. 98 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. 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 Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 32