Is there anything an employer can’t ask about my criminal record?

Yes! There are certain parts of your criminal record that employers CANNOT legally ask you about at any time. Under state law, an employer (including ones with fewer than 5 employees) cannot ask you about:

    Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.[1870] An employer cannot ask a question like, “Have you ever been convicted of any crimes that were dismissed?” If they do ask about these convictions, you don’t have to report ones that were expunged/dismissed.
    Arrests that did not lead to a conviction. An employer with five or more employees CANNOT ask about past arrests where you were not convicted of the alleged crime. This includes arrests where the charges against you were never brought, charges were dismissed, and cases where you were found not guilty. THERE ARE 3 EXCEPTIONS TO THIS RULE YOU SHOULD KNOW: [1871]
    First, private and public employers can still ask about recent arrests that are pending or unresolved but ONLY after they have extended a conditional offer of employment.[1872] For example, if you were arrested, posted bail money, and are awaiting trial, the arrest is still considered pending, and employers can learn and ask about those once they have conditionally offered you a job.
    Second, law enforcement employers can ask about and consider all arrests.
    Third, health care facilities and pharmacy employers can ask about and consider CERTAIN arrests (for drug and/or sexual offenses) if you are applying for a job with regular access to drugs or medications (for drug arrests), or to patients (for sexual offense arrests).
    Arrests that led to the completion of a court diversion program. A court diversion program (such as a drug rehabilitation program) helps a person charged with certain crimes avoid criminal charges—and therefore avoid a criminal record. By law, employers are NOT allowed to ask for any information about your participation in a court diversion program.[1873]

REMEMBER: In general, if an employer asks you if you were ever arrested, you SHOULD NOT answer that question, and you DO NOT have to. Politely remind the employer that this question does not comply with current California law.

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  1. 1870

    2 Cal. Code Regs. § 7287.4(d)(1)(B); Cal. Lab. Code § 432.7(a).

  2. 1871

    Cal. Lab. Code § 432.7; see offenses listed under Cal. Health & Safety Code § 11590 (drug offenses); Cal. Penal Code § 290 (sexual offenses).

  3. 1872

    Cal. Gov. Code § 12952(a)(2).

  4. 1873

    Cal. Lab. Code § 432.7(a).