Privacy Issues in the Community College Workplace

In addition, the timing of when an agency asks for criminal conviction information matters. Labor Code section 432.9 (effective July 1, 2014) prohibits a state or local agency from asking an applicant to disclose information regarding the conviction history of the applicant, until the agency has determined that the applicant meets the minimum employment qualifications for the position as stated in any notice issued for the position. 99 This prohibition applies to both oral and written inquiries and specifically applies to inquiries about conviction history on an employment application. 100 However, Labor Code section 432.9 does not prevent a state or local agency from conduct a conviction history background check after determining that the applicant meets the minimum employment qualifications as stated in the notice for the position. 101 There are also some exceptions to the Labor Code section 432.9 restriction on when an agency can inquire about an applicant’s criminal conviction history. 102 The restriction does not apply to:

 Positions for which a state or local agency is otherwise required by law to conduct a conviction history background check;

 Positions within a criminal justice agency; or

 Individuals working on a temporary or permanent basis for a criminal justice agency on a contract basis or on loan from another governmental agency. 103

3. C RIMINAL R ECORDS AN E MPLOYER M UST O BTAIN

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. b. Public Health Facilities Agencies operating public health facilities may ask job applicants questions about certain types of arrests. They may ask applicants who would work with patients if they have ever been arrested for a violation of Penal Code section 290 and may ask applicants who would have access to drugs and medication if they have ever been arrested for any violation under Health and Safety Code section 11590. The purpose of these exceptions is to learn if an applicant might harm patients.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 33