California has some of the strongest protections in the country for job applicants with prior arrest records, particularly when those records do not result in a conviction or have been sealed by a court. Despite these protections, employers sometimes violate the law by using sealed or non-conviction arrest records to deny employment. If this has happened to you, it is important to understand your rights.
The Legal Framework
Three California statutes work together to protect job applicants in this situation.
First, Labor Code section 432.7(a)(1) prohibits any employer, whether public or private, from asking an applicant to disclose information about an arrest that did not result in a conviction or which has been otherwise sealed by law. The statute also bars employers from seeking this information from any source or using it as a factor in any hiring decision, including with respect to hiring, promotion, and termination. The purpose of the law is to “prevent employers and others from using nonconviction arrests because they are unreliable indicators of wrongdoing,” since “culpability cannot be proved.” Doe v. Cal. Dept. of Motor Vehicles, 102 Cal. App. 5th 1004, 1018 (2024) (citation and quotation omitted).
Second, Penal Code section 851.91(e)(2)(B) provides that once a court seals an arrest record, the arrest is deemed not to have occurred. A person whose record has been sealed may answer any question about the arrest accordingly. In other words, if you were arrested but the case was dismissed or never charged, and a court later sealed that record, you are legally entitled to say the arrest never happened. There are limited exceptions for peace officers, applicants for public office and certain state or local agency licenses, and contracting with the California State Lottery Commission.
Third, Labor Code section 98.6 prohibits employers from retaliating against applicants or employees who exercise rights protected under the Labor Code. This means an employer cannot penalize you for declining to disclose a sealed or nonconviction arrest, because the law gives you the right not to disclose it. Exercising that right is itself protected activity. Remedies under this statute can include civil penalties of up to $10,000 per violation, reinstatement, or hiring of the applicant, and reimbursement for lost wages and benefits.
A Common Scenario
Consider a situation that arises more often than it should: an applicant completes a hiring process, performs well in interviews, and receives a conditional offer of employment. The employer then conducts a background check, which reveals a prior arrest that was sealed by court order or never resulted in a conviction. The employer withdraws the offer, citing the applicant’s failure to disclose the arrest during the hiring process.
This is usually unlawful. Except for limited exceptions discussed below, California employers have no right to ask about sealed or nonconviction arrests, no right to obtain information about them through a background check, and no right to use such an arrest as a basis for an adverse employment decision. An applicant, for their part, has the right to treat the sealed arrest as though it never occurred. By withdrawing the offer, the employer likely violates the statutes described above.
The Peace Officer and Public Office Exceptions
Both Labor Code section 432.7 and Penal Code section 851.91 contain narrow exceptions for peace officers and certain categories of public office. These exceptions sometimes create confusion for government employers who assume they apply broadly to all public safety or government positions.
They do not. California law defines “peace officer” with specificity. The term includes police officers, sheriffs, and certain investigators, but it does not include many other public safety roles. Firefighters, for instance, are generally not considered peace officers under California law. Courts have held that members of a fire department, other than arson investigators, are not peace officers when their primary duty is fire prevention or suppression rather than law enforcement. Similarly, the “public office” exception is narrow: it requires that a position involve a defined tenure, succession of incumbents, and delegation of sovereign governmental functions. Most civil service positions, including those filled through competitive examination, do not meet this test.
Employers who assume these exceptions apply to their workforce without careful legal analysis do so at their own risk.
What to Do If This Happens to You
If an employer has withdrawn a job offer, refused to hire you, terminated your employment, or taken another adverse action because of a sealed or non-conviction arrest record, you may have a claim for damages including lost wages, civil penalties, and attorney’s fees. You may also have a claim for the job itself.
If this has happened to you and you would like to request a free legal evaluation, complete the intake form below.