Porterville, CA asked in Criminal Law, Domestic Violence and Employment Law for California

Q: Do I need to disclose my arrest before having a background check in California to a new emploer

I was arrested, not convicted. And offered a job but haven’t received any paperwork until tomorrow. And I will be getting a background check, but do I need to tell them about my arrest first

2 Lawyer Answers
Nors  Davidson
Nors Davidson pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • San Francisco, CA
  • Licensed in California

A: Generally speaking, I wouldn’t disclose an “arrest” unless I was specifically told to do so. Arrests are highly prejudicial in that an individual can very well be innocent of a the crime for which he or she is arrested but never given the opportunity to testify or defend themselves because for one reason or another, the prosecutor declined to file charges or dismissed the case. A conviction, on the other hand, is a different matter and perhaps it would make sense to disclose it before the background check since they’re likely to find it. As far as your arrest goes, I would highly recommend that you speak to an attorney because California law haas changed to allow individuals like yourself who’ve been arrested for a crime but never convicted ti petition the court to have all records of that arrest completely sealed and destroyed so this would issue wouldn’t come up in this instance, or any future ones. These petitions are generally granted in my experience so it would be a big mistake not to pursue getting these arrest records sealed and destroyed.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Criminal Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: In California, employers are generally prohibited from asking about or considering arrests that did not lead to convictions when making hiring decisions. This protection is provided under the California Fair Chance Act (AB 1008), which is part of the California Fair Employment and Housing Act (FEHA).

Key points:

1. Employers cannot inquire about arrests that did not result in a conviction during the hiring process, including on job applications, during interviews, or through background checks.

2. Employers can only ask about convictions after a conditional job offer has been made.

3. If an employer decides to revoke the job offer based on a conviction, they must conduct an individualized assessment, provide the applicant with a written notice, and give the applicant a chance to respond before making a final decision.

4. You are not required to voluntarily disclose information about your arrest to your potential employer.

However, if you are asked about convictions after a conditional job offer has been made, you should answer truthfully. If the employer discovers that you have lied about your criminal history, they may have grounds to rescind the job offer or terminate your employment.

In summary, you do not need to proactively disclose your arrest to your potential employer in California, as they are not allowed to ask about or consider this information in their hiring decision. Wait for the background check results, and if the employer raises any concerns related to your criminal history, you will have an opportunity to respond and provide additional context.

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