©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 271 7.25.4 Impermissible employer inquiries or surveillance LC § Description Penalty 432.7 No Inquiries Regarding Arrest That Did Not Lead to Conviction or That Occurred When the Applicant was a Juvenile. Employers must not ask employees or applicants about arrests or detentions that have not led to conviction. Employers must not ask about or use information about participation in diversion programs. Employers must not ask about a conviction that has been judicially dismissed or ordered sealed pursuant to law. Employers must not seek, or use as a factor in determining any condition of employment, information regarding participation in diversion programs or arrests or detentions, unless the arrest led to conviction. And employers must not ask applicants about arrests or detentions that occurred when the individual was a juvenile, and must not seek—or use as a factor in determining any condition of employment—information regarding arrests or detentions that occurred when the individual was a juvenile. Employers may ask employees/applicants about arrests pending trial, but must not rely on them for any adverse employment decision unless it results in a conviction. Exceptions: an employer is not prohibited from asking an applicant about the information above if (1) the employer is required by law to obtain information regarding conviction of an applicant; (2) the applicant is required to possess or use a firearm in the course of employment; (3) an individual convicted of a crime is prohibited by law from holding the position sought, regardless of whether that conviction was expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; and (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime. In addition, health care employers defined in section 1250 of the Health & Safety Code may ask certain applicants about arrests under any section specified in Penal Code section 290 and Health & Safety Code section 11590. Health care employers may also inquire into arrests and detentions that occurred when the applicant was a juvenile when the information concerns a matter before the juvenile court in which the applicant has been found to have committed a felony or misdemeanor that occurred within five years preceding the job application. Health care employers must provide applicants with a list describing specific offenses under Penal Code section 290 and Health & Safety Code section 11590 for which disclosure is sought. Health care employers may not uncover sealed records by the juvenile court. Actual damages or $200; treble damages or $500; costs and reasonable attorney fees. Any intentional violation is a misdemeano r punishable by fine not to exceed $500. 432.8 No Inquiries Regarding Marijuana Arrests Over Two Years Old. Employers must not ask employees or applicants to disclose misdemeanor marijuana arrests or convictions that are over two years old, or consider those arrests or convictions in making employment decisions. LC 2699 435 No Audio or Video Recording in Private Areas. Employers must not record by audiotape or videotape any activity in locker rooms, restrooms, or any other area where employees change clothes, unless authorized by court order. LC 2699
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