Privacy Issues in the Workplace

1. T IMING FOR W HEN E MPLOYER C AN O BTAIN C ONVICTION H ISTORY

Government Code section 12952 (effective January 1, 2018) makes it an unlawful employment practice for an employer with five or more employees to do any of the following:

 To include on any application for employment, before the employer makes a conditional offer of employment, any question that seeks the disclosure of the applicant’s conviction history.  To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.  To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment: o An arrest not followed by a conviction, except when permitted under Labor Code section 432.7(a)(1) and Labor Code section 432.7(f) o Referral to or participation in a pretrial or posttrial diversion program o Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to the law.  To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided by this section. 86

Government Code section 12952 does not prevent an employer from conducting a conviction history background check not in conflict with the above restrictions on criminal background checks. 87 In addition, the above restrictions on criminal background checks do not apply to the following circumstances:

 To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.  To a position with a criminal justice agency, as defined in Penal Code section 13101.  To a position as a Farm Labor Contractor as described in Labor Code section 1685.  To a position where an employer or its agent is required by any state, federal, or local law to conduct a criminal background checks for employment purposes or to restrict employment based on criminal history. 88

If an employer intends to deny an applicant a position of employment solely in or in part because of the applicant’s conviction history, the employer must “make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” 89 In making this assessment, the employer must consider:

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 29