Criminal Background Questions

Although most employers would prefer not to hire workers with criminal records, there are restrictions on what applicants can be required to disclose. For example, Labor Code section 432.7 bars prospective employers from inquiring about arrests that did not lead to a conviction. And, Labor Code section 432.8 bars prospective employers from asking about convictions for certain drug offenses more than two years old.

For each violation, an applicant may recover actual damages or $200, whichever is greater. If the violation is intentional, the applicant may recover three times actual damages or $500, whichever is greater. Those easily available penalties have provided the basis for numerous class actions based on applications with banned questions. See the reports from Mitchell Silberberg & Knupp, Morgan Lewis and Sonnenschein Nath & Rosenthal.

One set of employers has a federal exemption from those restrictions. Under the Combat Methamphetamine Epidemic Act of 2005 amendment to the Controlled Substances Act (found at 21 U.S.C. section 830(e)(1)(G)), retail pharmacies may ask applicants for employment whether they have ever been convicted of any crime involving controlled substances, without regard to any restrictions imposed by California law. That provision helped Longs Drug Stores defeat a recent class action in the Court of Appeal. See Rankin v. Longs Drug Stores California, Inc., Case No. D052124 (Cal. Ct. App. Jan. 6, 2009).

Other types of employers should review their applications to make sure that they do not require applicants to disclose arrests or or marijuana drug convictions that are over two years old.