Q: On our job application, it asks, “have you ever pleaded guilty, no contest, or had a misdemeanor?” The applicant answered no. We ran a public records search and found he had a DUI conviction, which means he lied on the application. Is it legal for us to ask this question on our job application? And, because we are aware of the fact that he had the DUI and did not disclose it, are we within our rights to consider the fact that he lied on the application?
A: You cannot ask questions on an employment application regarding arrests that have not resulted in convictions. You also cannot ask questions about marijuana convictions that are more than 2 years old. You can ask the application about any other criminal convictions regardless of time. If the employee lies on his job application about a conviction, you can consider that in determining whether or not to hire that person. In California, employment is considered to be “at will,” unless you enter into an agreement otherwise with the employee. This means you are free to not hire him for any reason at all, so long as it is not a reason that is prohibited by law (usually this just includes race, gender, medical condition, etc.)
Employers who conduct their own job reference checks or other investigations without using an investigative reporting agency do not have to disclose the information obtained to the applicant or employee (e.g., adverse letters from former employers). But employers who check public records regarding job applicants or employees (e.g., arrest records, civil judgments, tax liens, etc.) must provide a copy of the applicable public record to the prospective employee within seven days after receipt, unless the applicant or employee is suspected of wrongdoing, in which case supplying the copy may be delayed. There are civil penalties if you do not timely provide the job applicant with a copy of the public records report you received.