You Could Lose Your Job After an Arrest: Know Your Rights!

Being arrested or charged with a crime in California can be terrifying, and one of your biggest fears is likely losing your job. But here’s crucial news: your employer cannot automatically fire you just because you’ve been arrested or even convicted! You have rights and options to protect your employment and clear your record.

Criminal defense attorney William Pernik and employment law expert Ashley Cameron share vital insights on what to do if you’re in this situation:

What to Do if Arrested While Employed:

• Employers Can Ask, But Don’t Overshare: Your employer can ask about your pending criminal case, especially how it impacts your job duties (e.g., a DUI affecting a driving job). However, they’re not entitled to privileged information or every detail. Provide “need-to-know” information without incriminating yourself.
• Cooperate (Carefully): While you shouldn’t overshare, don’t be uncooperative. Employers can fire you for refusing to participate in their internal investigation, even if they can’t fire you just for the arrest itself.
• Know Your Rights Post-Conviction: Even after a conviction, an employer can only fire you if there’s a direct “nexus” or business reason related to your job duties (e.g., a bookkeeper convicted of theft). A DUI, for most jobs, typically isn’t enough grounds for termination unless driving is central to your role.
• Seek Legal Advice Immediately: Always discuss any employer interviews or inquiries with your criminal defense attorney. They’ll guide you on what to say and what to withhold to protect your legal case.

Clearing Your Record: The Power of Expungement

If you have a past criminal conviction, expungement (officially a California Penal Code §1203.4 dismissal) is key to improving your employment prospects.

• It’s Not a Magic Eraser: An expungement doesn’t completely erase the conviction from all records (e.g., Department of Justice records will still show the case was dismissed). However, it changes the record to show the conviction was “set aside,” meaning you are “relieved of all penalties and disabilities” from it.
• Employer Inquiries Post-Offer Only: Employers generally cannot ask about your criminal history until after they extend a job offer. They also can’t advertise for a “clean record” or automatically disqualify you based on a background check.
• Your Right to Respond: If a background check reveals a past conviction after a job offer, the employer must give you written notice, a copy of the report, and an opportunity to respond. This is your chance to explain mitigating circumstances, rehabilitation efforts, or state that the conviction has been expunged (which employers are generally prohibited from considering).
• How to Get an Expungement: Typically, you file a petition with the court. If you successfully completed probation, dismissal is mandatory. If not, you can argue for “interest of justice” dismissal by showing significant life changes and rehabilitation.

Important Exceptions & Final Advice:

While expungement offers broad relief, there are limited exceptions where you might still need to disclose a past conviction (e.g., applying for public office, law enforcement, certain state licenses). Also, expungement may not negate firearm prohibitions or certain immigration/DMV consequences.

Don’t despair! If you’ve been arrested, charged, or have a past conviction, be informed about your rights, be proactive, and always talk to a good lawyer. Clearing your record can unlock future opportunities and prevent past mistakes from holding you back.