Domestic Violence, Sexual Assault, Stalking & Work: Survivors with a Criminal Record

Domestic violence, sexual assault, and stalking survivors sometimes find themselves being arrested along with the abuser or perpetrator, convicted of a crime stemming from the abuser’s attack, or subject to a protective order against them..  While SB 591 (Solis), which passed in 1995 and amended Family Code §§ 2047, 6305 & 7720 and Penal Code § 13701, discourages law enforcement from making dual arrests in response to a domestic violence call, it does not prohibit dual arrests.  As a result, domestic violence survivors, as well as sexual assault and stalking survivors, could be arrested, face prosecution, or be the subject of a protective order.  This fact sheet provides information on how the survivor should treat a criminal record.

  1. What can my employer ask about my criminal record?

    An employer can only ask about certain information in your criminal record (“rap sheet”).  In general, private employers cannot request a copy of your criminal record since it is not a public record.  You should, however, be aware that private employers do sometimes conduct background checks on applicants or employees.  These background checks can give employers access to some of your records using  public records and databases kept by courts, news reporting agencies, or for-profit information-gathering services, which can turn up not only permissible information (convictions or dismissed convictions) but information that the law prohibits an employer from having, such as arrest records.

    Arrests without convictions

    Generally, an employer cannot ask about arrests that did not lead to a conviction, per California Labor Code § 432.7.  When you are applying for a job or are being considered for promotion, termination, or placement in a training program, the employer cannot ask about arrests that did not result in a conviction, either verbally or in writing.  Your employer is also prohibited from trying to find out from other sources whether you have been arrested. Even if your employer somehow learns of your arrest record, §432.7 prohibits your employer from considering any arrest that did not lead to a conviction in making decisions regarding your hiring, firing, or promotion. 

    There are exceptions to this general rule: an employer may inquire about arrests pending trial, but it may not make the arrest pending trial the sole determining factor in making an adverse employment decision.  Law enforcement agencies may ask job applicants about any arrests, although current employees of these agencies are protected.  Also, health care providers may ask job applicants about arrests for sex crimes (California Penal Code § 290) or drug offenses (California Health and Safety Code §11590).

    Convictions

    Generally, an employer may ask about all convictions (infractions, misdemeanors, and felonies), which includes any pleas or verdicts, even if there was no sentence imposed. 

    (Note: an “infraction” is an “offense,” not a “crime.”  “Infractions” are non-criminal acts that may result in a fine but not imprisonment, like traffic violations, a first conviction for trespass, or a first conviction for loitering in a transit facility).

    Criminal History (including arrest record)

    An employer or prospective employer may not obtain a copy of your summary criminal history (“rap”sheet), a list of your arrests and convictions, unless you are seeking employment in the following areas (and even then, only for certain crimes):

    • Commercial banks, credit unions, and savings and loan associations;
    • Supervisory power over minors;
    • Daycare facilities and developmentally disabled facilities;
    • Some organizations that are considered “agencies of the state” can see your records if they are permitted to do so by law or regulation;
    • Public utilities, especially nuclear power plants;
    • Government employers if authorized by law or regulation (Labor Code § 432.7); and
    • Law enforcement agencies. 

    See Cal. Penal Code §11105 for what information may be included in employer-requested criminal records.  As noted above, a public records search may turn up the arrest record, but Labor Code § 432.7 prohibits an employer from seeking out the arrest record to affect your employment.

  2. Can I "clear" my criminal record?

    The specific forms and procedures for making changes to your criminal record will depend on the county that had jurisdiction over your matter.  This answer explains the general process for having your record changed.  

    Arrests without convictions: seal and destroy an arrest record

    California Penal Code § 851.8 allows you to have your arrest record sealed and destroyed.  You would petition the law enforcement agency that arrested you to destroy its records of the arrest.  Upon determining  that you are factually innocent of the charges for which you were arrested, the law enforcement agency will seal its arrest records and destroy it three years after the date you were arrested.  (§851.8 (a)).

    If the law enforcement agency that arrested you denies your petition, you can petition the superior court that has jurisdiction over your matter. If the court finds that no reasonable cause exists to believe that you committed the offense that you were arrested for, the court will find that you were factually innocent of the charges for which you were arrested for and order the sealing of your criminal records and its destruction three years after the date of arrest. (§851.8 (b)).For arrests occurring on or after January 1, 1981, petitions to seal and destroy arrest records may be filed up to two years from the date of the arrest. You can waive these time restrictions upon a showing of good cause and in the absence of prejudice (§851.8 (l)).

    Convictions

    You cannot have the conviction erased (“expunged”) from your record, but you may be able to get your conviction “dismissed” pursuant to Penal Code §1203.4 . While a “dismissed” conviction does remain on your record, your record will show that you had “a dismissal pursuant to Penal Code §1203.4.”  The dismissal of the conviction also enables you to answer an employment question that asks whether you have been convicted of a crime with “yes, conviction dismissed.” 

  3. How do I get my conviction dismissed?

    Obtaining a dismissal can be a complicated and detailed process.  This answer explains the process generally.  For specific resources, see the question “Where can I get more help or information about my rights?”

    Mandatory dismissal

    To have your conviction dismissed, you will need to file a petition under California Penal Code § 1203.4 with the court that convicted you. You will be given a court date at which you MUST APPEAR. If you appear at the court date and fit the following profite, the conviction must be dismissed if:

    1.      As a result of your conviction, you were sentenced to probation, a fine, time in county jail, and/or no sentence

    2.      You have fulfilled your entire sentence, including your entire probation period

    3.      You have not be charged with any subsequent crime

    4.      Your conviction was not for a sex offense

    If you satisfy all four requirements, then the court must grant your petition.  Once the petition is granted, all records will be changed to reflect the dismissal, for example, “guilty”/“nolo contendere” pleas will be changed to “not guilty” or guilty verdicts will be set aside.  Your criminal record will say that your conviction was dismissed

    Discretionary dismissal

    If you cannot meet all the requirements or if you are still on probation, your petition for dismissal can still be grated if it is “in the name of justice.” You will want to seek assistance from an attorney for this process. Once the court grants the discretionary dismissal, then the discretionary dismissal process will follow the same process as the mandatory dismissal.

     

     

     

  4. How do I answer employment questions?

    If the employer asks, Do you have any arrests? You may answer:

    • No, if you only have arrests without convictions. Most employers cannot ask about arrests that did not result in convictions.  Note the exceptions in question #1: when you must list arrests that did not result in conviction.
    • Yes, if you have any arrests that resulted in a conviction.

    If the employer asks, Do you have any convictions? This question is phrased broadly so that the question covers felonies, misdemeanors, or infractions; if you have any, then you must answer: Yes.

    •  If you have any dismissed convictions (“expunged”), then you can answer: Yes, conviction dismissed.
    •  Note: traffic infractions are “offenses,” not “crimes.”
  5. If my abuser has a restraining order against me, can my employer terminate me? What can I do to have the order removed?

    If your abuser obtains a restraining order against you and your employer finds out about the restraining order, the law does not expressly prohibit your employer from terminating your employment.  Furthermore, since a court-issued order is part of the public record, a public records search will uncover the existence of the restraining order.  The best you can do about a restraining order is to ask the judge to change or cancel the restraining order.

  6. Where can I get help or learn more about my rights?

    The California Courts Self-Help Center provides detailed, helpful information about obtaining a dismissal.  Visit www.courtinfo.ca.gov/selfhelp/other/crimlawclean.htm.

    For incidents in San Francisco County, see the San Francisco Public Defender’s Clean Slate Program at http://sfpublicdefender.org/clean-slate-program/.

    For incidents in Alameda County, see the Alameda County Clean Slate Clinic at the East Bay Community Law Center at www.ebclc.org/index.php.

    If you have questions or would like more information about your employment rights, please contact Project SURVIVE at 1-888-864-8335.

For further information about your employment rights, contact Project SURVIVE.

Disclaimer

This Fact Sheet is intended to provide accurate, general information regarding legal rights relating to employment in California. Yet because laws and legal procedures are subject to frequent change and differing interpretations, the Legal Aid Society–Employment Law Center cannot ensure the information in this Fact Sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency about your rights in your particular situation.