Can California Employers Ask About Arrests?

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Based on California law, employers are generally prohibited from asking job applicants about arrests that did not result in convictions. Here are the key rules regarding employer inquiries about arrests in California:

Pre-Offer Restrictions

California employers with five or more employees are prohibited from asking about criminal history or including criminal history questions on job applications before making a conditional job offer. This includes questions about arrests.

Post-Offer Limitations

Even after making a conditional job offer, employers in California cannot consider or ask about the following:

Arrests that did not lead to a conviction
Participation in pretrial or post-trial diversion programs
Convictions that have been sealed, dismissed, expunged, or statutorily eradicated
Arrests or proceedings that occurred while the individual was subject to juvenile court law
Non-felony marijuana possession convictions that are more than two years old

Exceptions

There are some limited exceptions that allow certain employers to inquire about arrests, such as:

Law enforcement agencies
Positions working with children, elderly, or disabled individuals
Other jobs where state or federal law requires consideration of arrest records

Individualized Assessment Required

If an employer does learn about criminal history after making a conditional offer, they must conduct an individualized assessment considering factors like:

Nature and gravity of the offense
Time passed since the offense
Nature of the job sought

Notice Requirements

Before taking any adverse action based on criminal history, employers must give the applicant written notice explaining the disqualifying conviction(s) and giving the applicant an opportunity to respond.

The key takeaway is that in most cases, California employers cannot ask about or consider arrests that did not result in convictions at any stage of the hiring process. The law aims to give applicants a fair chance at employment without being penalized for past arrests that did not lead to convictions.