California employers may legally decline to hire a job applicant because of a DUI or DWI conviction for driving under the influence of alcohol or drugs. But job applicants have some protections from the harmful effects that criminal convictions have on employment.
First, private employers cannot use an arrest or detention as a factor for determining hiring, promotion, termination, or any other condition of employment if it did not result in a conviction. They also cannot factor to convictions which have been judicially dismissed, also known as an expungement in jurisdictions like San Diego County. Employers are also precluded from factoring a conviction which has been ordered sealed, such as for minors’ convictions. However government employers might be able to use all of these types of criminal histories in their hiring decisions.
Second, as of January 1, 2018, it is unlawful for employers with five or more employees to ask a question about an applicant’s conviction history before making a conditional offer of employment to an applicant. In other words, applicants with a conviction history can get their foot in the door to demonstrate they are good people with sufficient qualifications for a job in the interview process just like anyone else.
Third, when an employer denies an applicant employment at least in part because of the applicant’s conviction history, the employer must first make an individualized assessment of whether the applicant’s conviction history will have a direct adverse relationship with the job duties of the position by weighing several factors. Those factors include the nature and gravity of the conduct; time since the offense and completion of the sentence; and the nature of the job sought. The employer also has to provide the applicant written notice that the specific conviction preliminarily disqualified the applicant and that the applicant has a right to respond to the notice with information that the employer shall consider before making a final decision, which also requires written notice to the applicant.
(See Link(s): Government Code Section 12952; Labor Code Section 432.7; and Penal Code Section 1203.4a)