California Employer: Arrest Records (Labor Code Section 432.7)
www.hrgazette.com Mary E. Wright, Editor The California Employer Employee Arrest Records California Labor Code §432.7 Your personal shopper for HR news!
There are 2 Kinds of Arrests. • Arrests that lead to a • Arrests that do not lead conviction. to a conviction.www.hrgazette.com Mary E. Wright, Editor
Employer May Not Ask an Applicant: • About an arrest not • An arrest leading to: leading to a conviction. – referral to or “Have you ever been arrested?” – participation in: • a pre-trial diversion program, or • a post-trial diversionCalifornia Labor Code §432.7 program. “Have you ever participated in a diversion program?”www.hrgazette.com Mary E. Wright, Editor
A “Conviction” is: • Plea Bargain • Finding of guilt • Verdict of Judge or Jury regardless sentence.www.hrgazette.com Mary E. Wright, Editor
A “Diversion Program” is: Program may include: A form of sentencing: 1. Education to prevent future • Run by a police department, offenses court, a district attorneys office, 2. Restitution to victims or outside agency. 3. Community service hours 4. Avoiding situations or people that • To enable offenders to could lead to commission of avoid criminal charges or record. further offenseswww.hrgazette.com Mary E. Wright, Editor
Employer May Not: Use evidence of a – Hiring convictionless arrest to set – Promotion terms or conditions of – Termination employment: – Training – Wages This is true regardless of the source for the information; i.e., voluntary disclosure, Google search, local news.www.hrgazette.com Mary E. Wright, Editor
Employer May: Ask an employee or applicant for employment: About an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.www.hrgazette.com Mary E. Wright, Editor
www.hrgazette.com Mary E. Wright, Editor Of course, nothing in California is that easy. There are all sorts of factual twists that can change the way this material applies in your particular situation – and the law changes all the time. Send questions or comments to: Mary Wright, Editor, HR Gazette Your personal shopper for HR news!
www.hrgazette.com Mary E. Wright, Editor Ubiquitous Disclaimer HR Gazette does not provide legal advice. The content of this slide deck is for informational purposes only. Before using this information – or any information you get over the Internet – consult your lawyer. Nothing takes the place of advice from a lawyer who knows you and your business, and who understands the laws of the state in which your business is located. Your personal shopper for HR news!