California’s ongoing relaxation of its marijuana laws has potheads very much riding high these days. Nonetheless, many employers continue to prefer employees who don’t smoke marijuana over those who do. Consequently, many potheads fear that their jobs will go up in smoke if their employers find out about their marijuana arrests or convictions. These potheads can breathe a sigh of relief. The Fair Chance Employment Act (FCEA) helps keep their criminal records under wraps for good. But the FCEA has several dizzying exceptions that can leave an employee dazed and confused.
Half-Baked: Drug Arrests Not Leading to Conviction
The FCEA prohibits an employer from searching for, inquiring into, or using information about: (1) an arrest or detention that didn’t result in conviction; (2) a referral to, and participation in, any pre- or post-trial diversion program; or (3) a conviction that a court has dismissed or sealed.1 Even many second-time marijuana offenders who have to stand trial for simple possession will never have a conviction to speak of because they can simply complete a diversion program in lieu of incarceration. As a result, many former potheads don’t have to fear that a current or prospective employer will dig up dirt on them.
But the FCEA has several narrow exceptions to the rule that an employer can’t pry into a pothead’s “arrested development.” First, an employer can ask an employee or job applicant about an arrest for which he is out on bail or on his own recognizance pending trial.2 Second, the FCEA doesn’t protect peace officers or persons seeking employment as peace officers or in positions at the Department of Justice or other criminal justice agencies.3 Third, a health facility can ask an applicant for a position that would give him access to drugs or medication to disclose whether he has ever been arrested for drug possession.4
Baking Bad: Drug Arrests Leading to Conviction
For an employee with a drug conviction, the “grass” will definitely seem greener on the other side. That’s because the FCEA permits an employer to seek, consider, or ask the applicant to disclose information about a judicially sealed or dismissed conviction if: (1) any state or federal law requires the employer to obtain the information; (2) the employer requires the applicant to carry a gun; (3) any state or federal law prohibits a convict from holding his job; or (4) any state or federal law prohibits the employer from hiring a convict.5 In other words, don’t expect to become an armored car driver if you have a marijuana conviction.
But even some drug convictions can be effectively off-limits to an employer. California law allows a job applicant who has been convicted of certain marijuana crimes to “truthfully” deny, within two years of the conviction, that he has ever been convicted of that crime.6 If you’re still worried, you can exhale. The law mandates the destruction of a record of certain marijuana-related offenses within two years of the conviction or arrest.7 In other words, the law allows an employer to search for or ask about a non-sealed marijuana conviction all he wants, but if two years have passed, the law might not do him any good.