Working World

Several years ago I was arrested on a charge of possession of marijuana and participated in a diversion program. After working for the same company for many years, I find myself having to look for a job again. Will I be asked on employment applications about my arrest? Am I required to tell prospective employers? Can an employer refuse to hire me if they find out about my arrest?

It is unlikely that any prospective employer will ask you about arrests. California Labor Code Section 432.7 prohibits most employers from asking about arrests or detentions that do not result in a conviction or about participation in substance abuse “diversion” programs. A conviction includes a plea or verdict, regardless of whether a sentence is imposed by the court. Also, employers may not consider such information when making other employment decisions, such as promotions, demotions or terminations.

Applicants for positions in law enforcement and for jobs with access to controlled substances (such as nursing), may be asked about some arrests, however.

All employers may ask applicants and employees about convictions. However, there are exceptions which would likely excuse you from disclosing your arrest and conviction. Labor Code Section 432.8 exempts from disclosure many convictions for marijuana possession that are more than two years old. In addition, successful participation in a diversion program often results in the “conviction” being removed from the criminal record.

In short, your arrest should not be a barrier to your finding a new job.

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.