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Santa Clara, CA asked in Employment Discrimination and Employment Law for California

Q: Can my employer terminate me over a arrest that was granted a judicial diversion?

I was arrested in non working hours. I did not plea guilty or no contest. I am required to do community service during the 6 month judicial diversion program. After my case will get dismissed and the arrest erased from my record. My employer told me they have to terminate employment because of getting referred into a diversion program. Is this considered discrimination since they are taking it as a conviction or a guilty plea.

3 Lawyer Answers
James L. Arrasmith
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Answered
  • Employment Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: In California, employment is generally at-will, meaning either the employer or employee can terminate the employment relationship at any time for any lawful reason.

However, there are exceptions where termination might be considered unlawful, such as discrimination based on a protected class or violation of public policy. While an arrest record itself is not a protected class, California law restricts employers from considering certain types of arrest records that did not lead to a conviction when making employment decisions.

In your case, as the judicial diversion program leads to dismissal of charges and erasure of the arrest record, it's not equivalent to a conviction or a guilty plea. If your employer is treating the diversion program as a conviction, it could potentially be argued that they are making an employment decision based on an improper consideration of an arrest record.

However, the specific circumstances of your arrest and the nature of your job might also be relevant factors. It is advisable to consult with an attorney who can provide guidance based on the details of your situation. Legal action may be possible if you believe your termination was unlawful.

Maya L. Serkova
Maya L. Serkova
Answered
  • Employment Law Lawyer
  • Orange, CA
  • Licensed in California

A: An employer should not consider an arrest that did not result in conviction as a motivating factor for terminating your employment. In your case, an employer had a duty to investigate further the facts surrounding your arrest and the diversion program details. However, there are exceptions to this rule. More facts need to be known to fully evaluate your case and advise if you may have a meritorious claim against your employer.

I suggest you consult an employment law attorney who will further examine your situation and explain your options. Most employment law attorneys in California offer free-of-charge initial consultations and thereafter may take your case on a contingency basis, meaning you do not have to pay attorney’s fees unless and until there is a positive outcome for you. They may also advance either all or partial costs of litigation.

You can look either on this site in the Find a Lawyer section or go to California Employment Lawyers Association (www.cela.org), an organization whose members are committed to representing employees’ rights. Best of luck.

Sincerely,

Maya L. Serkova

Neil Pedersen
Neil Pedersen
Answered
  • Employment Law Lawyer
  • Westminster, CA
  • Licensed in California

A: In California, an employer has a right to terminate an employee who is arrested and charged while you are employed. There has been no final disposition in your case. That will only occur after you successfully complete your diversion program.

Good luck to you.

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