Do I have to disclose an arrest to my current employer?

Asked over 1 year ago - Pleasanton, CA

I am a registered nurse in California. I was recently charged with 15 felony counts of forging prescriptions for controlled substances. I have a lawyer, I have been booked and processed. I have not yet entered a plea (I will likely plead guilty and enter a diversion program). Upon successful completion of the diversion program my record will be wiped completely clean. There won't ever be a record of the arrest, or charges. The actual crimes took place prior to my hire date, but the formal complaint and charges were not filed until I had been working for this employer for 10 months. At what stage, if any, am I legally required to disclose this information with my employer.

Attorney answers (3)

  1. Christine C McCall

    Pro

    Contributor Level 20

    1

    Lawyer agrees

    Answered . I am sorry to be the bearer of bad news, but you will be disappointed if you are expecting that, upon successfully completing pre-trial diversion, your CA Dept of Justice criminal history (Live Scan) and NCIC (FBI) records will not show your arrest. The arrest will remain on your record. The records will also show that you completed diversion and that the charges were resolved by your completion of the program. You will not have a conviction, but the record of the arrest, charges, and other case events is not disappeared or "wiped completely clean." The law will afford you certain protections against use against you of the fact of the arrest, charges and participation in diversion, but that is not the same as an eradication of the matter reported on the records of your history.

    If you have been booked and finger-printed, then the Board of Registered Nursing already has been advised of your arrest, and will soon initiate license revocation proceedings against you. In many cases, especially if you work for a large health-care facility, your employer will be notified by BRN of the pending license revocation action. BRN has the power to suspend pending the formal revocation action, but that power is seldom used against individuals. But these are serious and multiple charges, so be prepared for the possibility of interim suspension.

    Your employer either does or does not have a self-reporting policy. If it has one, it has a very narrow window in which to make the required notification. Failure to do that if required is professional misconduct and will cause your dismissal on that ground as well as an employer objection to unemployment benefits. If your employer does not have an internal policy requiring self-reporting, you are not required by statute or by administrative regulations to make an notification to your employer. You should be prepared for the possibility of termination or suspension by your employer upon notification of the charges. The diversion program does not constrain termination or employee discipline by private employers.

    BRN may offer you participation in BRN diversion as an alternative to a license discipline action. Be careful of BRN diversion. It can be very difficult to get out of the program, and it often lasts twice as long as the period before eligibility for re-licensure after revocation.

    Expect to have employment problems in nursing as a consequence of this matter even with a successful criminal court diversion. Health-care facilities are constrained in their personnel policies and practices by the coverage conditions of their professional liability (insurance) carriers. Many carriers will not permit a health-care provider or facility to hire or retain licensed staff on license probation, and some will not permit retention of licensed staff on license diversion.

    In short, your situation is serious and complicated, and there will be some choices that you must soon make that will define the next decade or so of your RN career. You need to have an in-depth consultation with an experienced professional/occupational licensing attorney to adequately identify, analyze, and evaluate your options.

    Best of luck to you.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice.... more
  2. Seth Andrew Weinstein

    Contributor Level 15

    Answered . That is a better question for an employment law attorney. You should be aware however that even if you are granted a diversion program, you will still be required to report to the Board of Nursing. The Board of Nursing will also give you a problem during license renewal. You need to be aware that this may hold up your license renewal.

    Seth Weinstein, Esq.
    Southern California Criminal Defense Attorney
    (310) 707-7131
    www.sethweinsteinlaw.com

    This reply should NOT be considered a legal opinion of your case / inquiry. At this time I do not have sufficient... more
  3. Jasen Bodie Nielsen

    Pro

    Contributor Level 19

    Answered . I'd suggest reviewing your employment agreement or handbook if you have one. I also expect problems with the Board of Nursing. I'm hoping you have spoken with your current attorney about these issues. These charges could turn out to be very problematic to your current and future employment. Good luck.

    Jasen Nielsen

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