Failure to hire after criminal background investigation

California Labor Code section 432.7 generally prohibits California employers from using as a factor in hiring, or asking an applicant to disclose, an arrest or detention that did not result in conviction or participation in pre- or post-trial diversion programs.

However, the above general rule is subject to various exceptions. For example, the rule does not apply to applicants for peace office, Department of Justice, or other criminal justice agency positions. Further, employers may ask applicants about arrests for which the applicant is currently out on bail or on his own recognizance pending trial. Employers that are health facilities may ask applicants for positions with regular access to patients to disclose information regarding arrests for sex offenses, and ask applicants for positions with access to drugs and medication to disclose information regarding arrests for controlled substance offenses.

The penalties for violating the above laws are relatively mild, and generally amount to a few hundred dollars plus costs and reasonable attorneys fees. An intentional violation of this section by the employer is also considered a misdemeanor. In addition, this section doesn’t prohibit pursuing remedies for violation of other laws, such as California Fair Employment and Housing Act (FEHA) provisions that may come into play and other prohibitions on discrimination in hiring and promoting employees.

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