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Rand L. Stephens & Richard Koss

Can an Employee be Terminated From Work For a DUI?

Downsize business. Employee moving off from office after sacked

A conviction for driving under the influence of alcohol or drugs (DUI) can have a ripple effect on other aspects of a person’s life. Criminal convictions can affect whether a person can live in certain locations, obtain loans, obtain certain professional certifications, and seek gainful employment. Some states have begun to implement protections for defendants who have completed their criminal sentence, in order to encourage employment and reduce recidivism. In some states, for example, it’s unlawful for an employer to ask about a person’s criminal history until after they offer the person the job–the idea being to encourage employers to fully review an applicant before making a decision tainted by the criminal conviction. California has certain protections for employees and applicants, but not others. Continue reading for a discussion of how criminal convictions interact with employment in California, and call a savvy California employment attorney with any questions or for help with an employment-related matter.

Conviction for a DUI

If you were convicted for a DUI, your DUI will become part of your criminal record. Criminal records are public unless sealed or expunged by law. Employers can ask about criminal records once an employee has been offered the job, and they can conduct their own background searches to determine if an applicant or current employee has a criminal record. Employers cannot ask about criminal convictions until a conditional job offer has been made, however, outside of certain specific employers and positions (such as criminal justice agencies).

No California law protects employees from being fired or denied a position based on a criminal conviction. Unless the employee is protected by the terms of an employment contract, a worker in the private sector is an “at-will” employee. That means that their employer can fire them at any time, for any reason, or no reason at all, so long as the reason is not otherwise prohibited by law.

Certain reasons for termination are unlawful: Employers cannot discriminate based on protected characteristics (race, religion, gender, etc.), they cannot terminate employees in retaliation for whistleblowing or exercising rights such as protected leave, or in connection with harassment or a hostile work environment (a form of sex discrimination). Convicted criminals are not a protected class in California, and no law prohibits employers from firing an employee based on their criminal history.

If There Was No Conviction

It’s important to note that while you can be fired or denied a position for a criminal conviction, you cannot be fired or denied a position because of an arrest that did not result in a conviction. California prohibits employers from even asking about arrests.

Under Labor Code Section 432.7:

  • An employer may not ask employees to disclose information about arrests or detentions that did not result in a conviction.
  • An employer may not base an employment decision or a condition of employment (job offer, promotion, bonus, etc.) on a record of arrest or detention that did not result in a conviction.

Additionally, juvenile records and sealed records are protected from disclosure:

  • An employer may not ask employees to disclose information relating to a juvenile arrest or adjudication
  • An employer may not ask employees to disclose information concerning pretrial or post-trial diversion programs or concerning convictions that have been judicially dismissed or sealed by law

Juvenile records and sealed records are also prohibited from consideration when making employment decisions.

If you are a San Francisco employee or employer in need of advice or representation concerning wage and hour disputes, retaliation, whistleblower protections, workplace discrimination, or other California labor law issues, contact the Richard Koss Bay Area employment law attorneys at 650-722-7046 on the San Francisco Peninsula, or 925-757-1700 in the East Bay.

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