Know Your Rights

Californians possess many rights when it comes to when and how a criminal conviction can be held against them for employment purposes. At this point, most non-governmental employers cannot inquire about a conviction that has been expunged or an arrest that did not end in a conviction, nor could they use such a discovery in their hiring decision.

For current employees, however, the rights are a little less robust. Employers are within their right to request permission to run a background check on a current employee. Employers, however, are under certain regulations when it comes to firing employees for criminal convictions. And employees in “at-will” employment situations—which many Californians are—could face termination if convicted of a crime because the employer has a right to fire the individual at any point.

Under the Fair Credit Reporting Act (FCRA), employers must get written permission from an employee before running a background check. They must inform the employee of the purpose and potential consequences of the check. They must also notify the employee if they decide to fire him or her based on information found in the background check and provide the employee with a copy of the report if requested.

The FCRA imposes federal regulations on how and when an employer can run a background check on an employee. Those regulations do nothing to protect employees from being fired, but employers are also required under federal law by the Equal Employment Opportunity Commission to reduce the risk of discrimination in the workforce by taking into consideration the following factors when making a decision on hiring or firing:

• The nature and seriousness of the criminal offense
• How much time has passed since the offense or conviction, and
• The nature of the job

Under these regulations, the chances an employer has to obtain criminal background information on an employee and use that information against him or her are limited. But even with these limitations, you could easily be fired if your conviction has any bearing on your work or is cause for concern over your moral character. Use common sense here. For example, if you are a commercial driver, you could be fired for a DUI conviction. Similarly, if you worked with children and were convicted of endangering a child, you would most likely be fired.

So, how does an employer find out about a criminal background? As stated above, they have the right to simply ask. Similarly, your employer might require you to report any convictions you incur while employed. And in some fields, such as education, your employer or state board will run periodic background checks whenever renewing contracts or licenses. Many employers only run pre-employment background checks and don't require employees to report later convictions. As you can see, whether you will be fired for a criminal conviction depends—in large part—on your specific employer's practices and the nature of your offense and your job.

A criminal conviction can jeopardize your livelihood. But knowing your rights and the rights of your employer can give you a good idea of what you are up against. If you aren't sure of your employer's practices regarding criminal convictions, you should consider cleaning your record as soon as you can. An employer can decide to run a background check on you at any point and might even be able to fire you if you deny them permission. To be safe, you might want to clean your record by dismissing a conviction. Once dismissed, your employer will not be able to see the conviction on your background check. This can provide peace of mind and extra security.

Suffering a criminal conviction can affect many areas of your life, not least of which is your employment status. A conviction can make it difficult to get a job and could even result in you being fired even if your conviction isn't directly related to your job. You have rights as an employee, but so does your employer. Speak with an attorney about your case if you are facing criminal charges or have been convicted of a crime. A knowledgeable California criminal defense attorney can explain your options for fighting your charges or help you take steps to clean your record if you have been convicted of a crime and are concerned about how it might affect your employment.

Are you facing criminal charges in California and concerned about your job security? Contact attorney Christopher Martens and his team for legal help in Tulare, Fresno or Kings County.  Specializing in criminal defense and record cleaning, Mr. Martens can take immediate action in your case to defend your rights and clear your name. With over ten years experience in criminal defense, Attorney Martens has taken over 50 cases to trial and will not be afraid to do the same for you. Call our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] for a free consultation.