PRESENTED BY: �Amy Estrada, Partner

DOJ Reports,�Criminal Charges, & �Public School Employment

​

September 25, 2026

Imperial COE HR Group Meeting

​

Cerritos • Fresno • Irvine • Marin • Pasadena • Pleasanton • Riverside • Sacramento • San Diego

Agenda

THREE TOPICS:

​

• Dealing with DOJ Reports
• Subsequent Arrest Reports for Current Employees
• Criminal Charges & Convictions

1

Dealing with DOJ Reports

FINGERPRINTING AND BACKGROUND CHECKS�

• Under California law, several different types of individuals are required to be fingerprinted prior to working with a school district:
• Teachers and other positions requiring certification qualifications or supervising certificated personnel (Ed. Code § 44830.1);
• Classified employees (Ed. Code § 45125);
• Volunteers rendering certain types of services (Ed. Code §§ 45125.01 and 49024); and
• Contractors (Ed. Code §§ 45125.1 and 45125.2).  
• Fingerprinting of applicants for employment is also required by District AR 4112.5/4212.5/4312.5.
• The background check process determines an individual’s eligibility to be employed in a classified or certificated position, and requires applicants to submit to fingerprinting and clearance through the DOJ.

​

ACCESS TO AND MAINTENANCE OF CRIMINAL RECORDS

• Information regarding employee criminal history is confidential and accessible only to the District’s custodian of records.  
• This information must be stored in a locked file separate from other files and must be destroyed upon a hiring determination, such that the identity of the subject can no longer be reasonably ascertained. (Ed. Code §§ 44830.1(n) and 45125(k); 11 C.C.R. § 708(a).)
• The custodian of records is responsible for the security, storage, dissemination, and destruction of all Criminal Offender Record Information (CORI) furnished to the District and shall serve as the primary contact for the DOJ for any related issues. (Penal Code § 11102.2.)
• CORI shall be used only for the purpose for which it is requested, and its contents shall not be disclosed or reproduced. (Ed. Code §§ 44830.1 and 45125.)
• Furnishing of CORI to unauthorized individuals is punishable as a misdemeanor. (Penal Code § 11142.)

​

PROCESSING BACKGROUND CHECKS: JOB APPLICANTS

• After the District has interviewed and selected a candidate, issue a conditional offer of employment contingent upon a successful background check.
• Once you get the DOJ report:
• Document receipt of DOJ report
• Review the DOJ report
• Assess clearance of employee

​

REVIEWING THE DOJ REPORT

• If the DOJ report does not include any prior convictions, the applicant may be issued a final written offer of employment.
• If the DOJ report includes one or more prior convictions that are subject to automatic disqualification, the conditional offer of employment must be revoked.*
• If the DOJ report includes one or more prior convictions that are not subject to automatic disqualification, the District must follow up with the applicant to identify any errors in the DOJ report, provide mitigating information, or provide evidence of rehabilitation.* Then consider this information when conducting an analysis under the Green factors (discussed below).

*Note, A copy of any DOJ notification must be provided to the applicant or employee to whom it relates if the information is a basis for an adverse employment decision. The copy must be delivered in person or to the last contact information provided by the applicant or employee. (Penal Code §§ 11105(t) and 11105.2(a)(1))

​

ARREST BUT NOT A CONVICTION…

• Arrest notification (i.e., no conviction)
• An employer cannot refuse to hire people simply because they have been arrested. The fact that a person was arrested is not proof that they committed a crime.
• There are situations when an employer can explore the person’s conduct leading to the arrest and ask them to explain the circumstances. Then the employer may decide whether the conduct is a reason not to hire them or to make another employment decision.
• Labor Code Section 432.7 imposes this broad prohibition on all employers, public and private alike

​

​

Relationship between Arrests & Discrimination Claims

• Under Title VII of the Civil Rights Act of 1964, as interpreted by the EEOC, an employer's use of arrest records in employment decisions may constitute unlawful discrimination if it has a disparate impact on racial minorities and is not job-related and consistent with business necessity
• If the arrest is for conduct that would be directly relevant to the safety of students or the performance of the position — such as an arrest for a sex offense or for conduct involving children — the district's most defensible course of action is to conduct an independent investigation into the underlying conduct, provide the applicant with an opportunity to explain, and make any adverse employment decision based on the conduct itself rather than the fact of the arrest.

8

CONVICTIONS

• Federal and California law discourage the use of bright-line conviction disqualification policies.
• However, a school district “shall not employ or retain employment”:
• A person who has been convicted of a violent or serious felony as defined in Penal Code § 667.5(c) or 1192.7(c). The list of offenses that qualify as violent or serious felonies is quite lengthy, and includes offenses such as murder, robbery, and carjacking. (Ed. Code §§ 44830.1, 45122.1)
• A person convicted of a controlled substance offense as defined in Education Code § 44011, or a sex offense as defined in Education Code § 44010. (Ed. Code § 44836.)
• “Summary” termination process
• Absent conviction for one of the above-noted “mandatory” crimes, the District may not automatically dismiss an employee from employment.

​

CONVICTIONS

• For a permanent certificated employee, Education Code section 44932(a)(9) provides that “conviction of a felony or of any crime involving moral turpitude” may be a basis for termination.
• However, the dismissal would not be automatic, and the employer would need to utilize the Education Code’s prescribed pre-termination due process.
• Many districts have similar language for a basis for classified termination in their CBAs, PCRs, and/or BPs/ARs regarding the termination of permanent classified employees.

10

WHY CAN’T THE DISTRICT AUTOMATICALLY RESCIND OR TERMINATE?

• If the District declines to employ an applicant or dismisses an employee from employment based on their conviction of a non-mandatory crime (without an individualized assessment demonstrating that the decision is job-related), the District could be exposed to a disparate impact claim alleging that the criminal conduct exclusion is discriminatory under the Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).
• CRD (CA Civil Rights Dept) regulations on discrimination in employment prohibit an employer from discriminating by inquiring or seeking information concerning a criminal conviction unless it is job related. (2 C.C.R. § 11017(a).) “Job related” means “sufficiently related to an essential function of the job.” (2 C.C.R. § 11017(e).)

​

CONVICTIONS: NON-MANDATORY

• To exclude employment based on a conviction the employer must show job-relatedness and business necessity.
• An employer that wishes to disqualify an applicant based solely on a criminal conviction must notify the applicant of the disqualification and give them a reasonable opportunity to provide “specific evidence that the information is factually inaccurate.”
• In situations where the conviction is over 7 years old, there is a rebuttable presumption that the policy is not sufficiently tailored to meet the job-related and business necessity affirmative defense.

NON-MANDATORY CONVICTION, CONT.’D

• The EEOC Enforcement Guidance sets out three factors (“the Green Factors”) for analyzing how specific criminal conduct may be linked to particular positions and determining whether an employer’s criminal conduct exclusion is job-related and consistent with business necessity. Green v. Mo. Pac. R.R (8th Cir. 1977) 549 F.2d 1158, 1160.
• Green Factors:
1. The nature and gravity of the offense or conduct (i.e., the elements of the crime);
• Employers should consider the facts behind a conviction before determining whether it is disqualifying, where this information is reasonably accessible.

_{GREEN FACTORS}

GREEN FACTORS, CONT.’D

• The time that has passed since the offense, conduct, and/or completion of the sentence; and
• CONSIDER ONLY CONVICTIONS RECENT ENOUGH TO INDICATE SIGNIFICANT RISK. The risk that someone who has been convicted of a crime will commit another offense decreases over time. Employers should consider the available evidence on recidivism rates before rejecting an applicant. (Serious crimes 5 and/or 7 years. Less serious crimes 2 or 3 years.)
• CONSIDER EVIDENCE OF REHABILITATION People change over time. Some people with criminal convictions change their lives and become good citizens who can be good employees. Applicants with relevant convictions recent enough to be of concern should not automatically be rejected. Instead, they should be given the opportunity to present evidence of rehabilitation that the employer should carefully consider before making a decision.
• Multiple convictions, particularly those from separate incidents, are a much stronger indication of risk that the person will repeat the conduct, especially when one or more of the convictions are relatively recent.
• Lengthy continuous employment either before or after the offense is an indication that a person is less likely to re-offend. This is especially true if the applicant performed the same type of work as the job for which they have applied.

​

GREEN FACTORS, CONT.’D

• The nature of the job held or sought (essential functions and the job environment).
• CONSIDER ONLY CONVICTIONS THAT ARE RELEVANT TO THE JOB IN QUESTION. A person who has committed an illegal act in the past may be more likely than the average person to commit a similar act in the future, but they are no more likely to commit other offenses.
• Things to consider:
• Specific job duties (for example, interaction with vulnerable populations);
• Essential functions of the job;
• The circumstances under which the job is performed (e.g., level and regularity of supervision);
• Where the job is performed (e.g., out of doors, in private locations).

​

Table Exercises

SUBSEQUENT ARREST NOTIFICATIONS�

• The Education Code also requires school districts to request “subsequent arrest notifications” pursuant to Penal Code § 11105.2, which is an ongoing service that notifies the District when one of its employees is later arrested/convicted for committing a crime. (See Ed. Code §§ 44830.1(i), and 45125(j).)

SUBSEQUENT ARREST NOTIFICATIONS

• The District receives subsequent arrest and conviction notifications from the DOJ.
• Upon receiving notice that one of its current employees has been arrested and/or convicted of a crime, the District must respond appropriately.
• Upon an employee leaving the District’s employment, the District must immediately notify the DOJ, which will then suspend notifying the District of this (now former) employee’s subsequent arrests. (Penal Code § 11105.2.)

​

​

Unpaid leave during the pendency of certain criminal proceedings

• Mandatory leave of absence offenses / Optional leave of absence offenses
• Education Code section 44940
• Ed Code section 45304:
• (b) Whenever an employee of a school district or county office of education is charged with a mandatory leave of absence offense, as defined in subdivision (a) of Section 44940, the governing board of the school district shall immediately place the employee upon a compulsory leave of absence for a period of time extending for not more than 10 days after the date of entry of the judgment in the proceedings.  Once the employee is placed on leave of absence, he or she is subject to the provisions of Section 44940.5.
• (c) Whenever an employee of a school district or county office of education is charged with an optional leave of absence offense, as defined in subdivision (b) of Section 44940, the governing board of the school district may immediately place the employee upon a compulsory leave of absence in accordance with the provisions of Section 44940.5.

19

Offenses giving rise to LOA:

• Education Code section 44011
• List of controlled substance offenses
• Does not include most marijuana-related offenses
• Includes “Any offense committed or attempted in any other state or against the laws of the United States which, if committed or attempted in this state, would have been punished as one or more of the above-mentioned offenses.”
• Education Code section 44010
• List of numerous criminal sex offenses
• Includes (incorporated by reference) other sex offenses that would require registration as a sex offender (Penal Code section 290(c))
• Includes “ An offense committed or attempted in any other state or against the laws of the United States that, if committed or attempted in this state, would have been punishable as one or more of the offenses specified in this section.”

20

Table Exercise

Session

For questions or comments, please contact:

Thank You

Disclaimer

This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

​

©2026 Atkinson, Andelson, Loya, Ruud & Romo

​

24