Beyond the considerable legal penalties, a conviction for driving under the influence can negatively impact your career, and in some cases, it can actually damage your ability to find a job. Even a DUI charge that does not end with a conviction can negatively impact your employment and employment prospects – especially if you hold a commercial driver’s license (CDL) or if driving is your job or a key part of your job.
Both federal and state laws determine which employers may conduct background checks, how those background checks must be conducted, and how employers are allowed to use the information they acquire. Employers check the backgrounds of current and prospective employees for a number of reasons, and not all of those reasons are always legal. Whether or not a DUI arrest or conviction can be a reason for hiring or firing someone is determined primarily by laws at the state level. Employees in California have substantial legal rights. Let’s look first, however, at the federal restrictions on employer background checks.
The federal Fair Credit Reporting Act (FCRA) of 1970 applies to background checks performed by outside companies but not to background checks conducted in-house. While the FCRA bans the reporting of criminal arrests after seven years, criminal convictions including DUIs may be reported indefinitely. However, the restrictions mandated by the FCRA apply only to positions with a salary below $75,000.
Some federal courts have ruled that the Civil Rights Act of 1964 prohibits an employer from barring the employment of persons with criminal convictions unless that employer can demonstrate a compelling business reason to do so. However, this particular judicial interpretation of the Civil Rights Act comes into conflict with some employment laws in some states.
HOW DO THE INDIVIDUAL STATES GOVERN BACKGROUND CHECKS?
Most states permit businesses to refuse to employ anyone with a criminal conviction. Some states even allow employers to turn down applicants simply because they’ve been arrested – even if no conviction followed. However, at least fourteen of the fifty states require an employer to prove the relevance of a particular conviction to a particular job when rejecting someone for employment.
California and eight additional states also provide certificates of rehabilitation for employment purposes to those convicted of driving under the influence. The California Labor Code specifies that employers in this state may not ask about an arrest that did not result in a conviction. If you successfully complete probation for a DUI conviction in California, an Orange County DUI attorney can help you file a legal motion to withdraw your plea or to set the verdict aside, so your record will show that the case was dismissed.
Anyone running for public office in the state of California or submitting an application for a professional license in this state must disclose a DUI conviction (and any other criminal conviction) if it happened within the past ten years. If a job candidate in California is asked a direct question – on a job application or during an interview – about a criminal conviction within the last ten years, the applicant must answer truthfully.
Most states require background checks for certain types of jobs, including driving jobs and any job working with children, the elderly, or the disabled. A DUI conviction does not necessarily preclude an applicant from consideration for such positions, but some employers will perceive a DUI conviction as indicative of other potentially undesirable traits. The same can be said for state and federal jobs that require a security clearance. In California, if you have a DUI conviction, you’ll need that certificate of rehabilitation – or an expungement, discussed below – when applying for work that requires a security clearance.
ARE THE RULES DIFFERENT FOR COMMERCIAL DRIVERS?
Bus drivers, truck drivers, and other professionals with a commercial driver’s license (CDL) are held to a higher standard than non-commercial drivers, particularly with respect to driving under the influence. Whether their cargo is a tank full of gasoline or a school bus full of children, the stakes are much higher for a commercial driver. A drunk or drugged commercial driver not only poses a serious threat to public safety but is also a serious liability to his or her employer.
Most states, including California, have adopted the federal regulations for commercial drivers, which set a 0.04 percent blood alcohol content (BAC) limit. This is half the BAC limit for non-commercial drivers. Federal rules also stipulate that commercial drivers may not operate a commercial vehicle within four hours of using alcohol. In every state, commercial drivers who drive under the influence while on the job, or even in their personal vehicles, are barred from driving professionally for a specified period of time. In California, that period of time is at least one year.
HOW ARE BACKGROUND CHECKS CONDUCTED?
Almost two dozen types of information may be part of an employer’s background check. Background check data can include driving records, vehicle registrations, criminal records, court records, character references, educational records, and more. Much of this data is usually gathered directly from the employment application. While most employers simply want to know if a job candidate has a recent felony conviction, some states let employers ask much broader questions about a job candidate’s past.
With the emergence of social media sites like Facebook and Twitter, job seekers have additional concerns. An employer who might overlook a five-year-old DUI conviction might not also overlook a friend’s comment on Facebook about how drunk the two of you were last weekend. Whether or not you have a DUI conviction, if you’re seeking employment, it’s smart to go over any and all of your social media pages to eliminate anything that might be a red flag to a potential employer.
While it’s not an option for everyone with a DUI conviction, expungement is an option for many. It’s a legal process that “seals” the record of an arrest or a criminal conviction. Since 2014, California employers are prohibited by law from asking job applicants to disclose a DUI conviction that has been expunged. Expungement allows you to tell employers that you were not convicted of DUI. The 2014 law also forbids California employers from using an expunged conviction against you.
If you are having difficulty getting hired or advancing your career because of a previous California DUI conviction, consider speaking with an Orange County DUI attorney about having your DUI conviction expunged. If you were not sent to prison for DUI, your California DUI convictions can probably be expunged. Expungement of a DUI conviction in California requires full payment of all fines and restitution; attendance at all court-ordered counseling or educational programs; completion of community service; attendance at all required court appearances; and no violations of probation.