California state law provides extensive protections for individuals who have been convicted of crimes in the past but have taken steps to either expunge their record, have past felonies reduced to a misdemeanor, and/or have their criminal records cleared such that they do not appear in a background check. But what if you do not have a past criminal record and are instead facing criminal charges before the courts now? Understanding what potential and current employers can ask about with regard to pending criminal charges and what actions they may take should be critical factors in deciding how to address your situation.
Can Potential Employers Ask About Criminal Charges?
Let’s say you’ve been placed under arrest for a DUI twice, once five years ago and once last week, and that the arrest five years ago did not result in your conviction. In California, an employer is not allowed to ask about an arrest or detention by police that did not end in conviction, so you as the job applicant would not have to provide any information about the DUI arrest five years ago. The employer is also not allowed to look for any types of records for arrests that did not end in convictions, and, if they find out about it anyway (e.g. through a common acquaintance bringing it to the employer’s attention), they cannot use that information in their hiring decision. Unfortunately, many background check services will provide employers with records of arrests that did not result in conviction, but options are available to take action to remove such records.
On the other hand, the employer may ask you about any pending criminal charges, and so you would be obliged to provide the employer with information about the arrest that occurred last week even if you believe it will not end in your conviction. The employer may also use that information against you in deciding not to hire you, even if you later are found to be not guilty.
What About My Current Employer?
As is the case with an employer that you are applying to work with, your current boss/employer cannot ask you about past arrests or detentions that did not end in convictions, and they cannot use any information about such past arrests in deciding whether to promote, demote, or fire you. But, again, your boss can ask you about any criminal charges that you might be facing right now.
Your employer may also use that information against you in deciding to take an adverse employment decision against you such as firing or demoting you, so long as that decision is otherwise legal under California and federal employment law (e.g. the decision was not based on some illegal reason such as your race, nationality, sex, religion, etc.).
How Can I Protect Myself From a Pending Criminal Charge?
Given the fact that your employer can use a pending criminal charge against you but not a past arrest not resulting in conviction, your goal should be to get the criminal charges behind you as quickly as possible and work towards one of the following outcomes: 1) a dropped case, 2) a not guilty finding; or 3) the most lenient conviction possible, e.g. a misdemeanor with minimal consequences. While a felony may disqualify you from many jobs, a misdemeanor may not, and it can be later expunged (and a felony may later be reduced to a misdemeanor and expunged).
If you are facing criminal charges, work with an experienced criminal defense lawyer who understands the intersection of criminal law and employment matters and who can work to protect your career and future. Experienced criminal defense attorney Bert Kaspero helps protect the rights and freedom of clients facing criminal charges across Orange County, and works to expunge and clear their criminal records. Contact his office today to schedule a consultation.