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What are the requirements relating to advertising open positions?
Advertisements must not suggest a preference against applicants or independent contractors on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition (eg, cancer-related conditions or genetic characteristics), genetic information, marital status, sex, gender identity, gender expression, age (40 years and older), sexual orientation, or military and veteran status of any person.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
As a general matter, employers are prohibited from making any non-job-related inquiry of applicants or employees that directly or indirectly expresses a limitation, specification, or discrimination about any protected characteristic. In addition to the federal Fair Credit Reporting Act governing the use of background checks in employment, California employers must also comply with certain requirements in the California Investigative Consumer Reporting Agencies Act and the California Consumer Credit Reporting Agencies Act.
An employer may not ask an applicant about any arrest or detention which did not result in a conviction (California Labor Code, §432.7). Neither can employers ask applicants to disclose information regarding a conviction for certain marijuana-related crimes or possession of certain drug-related paraphernalia when the conviction is more than two years old (California Labor Code, §432.8). With limited exceptions, employers may not ask for juvenile convictions or inquire or use information about juvenile arrests, detentions, or court dispositions in making an employment determination.
Los Angeles employers are subject to ban-the-box local laws which prohibit inquiries on criminal records until after a conditional job offer has been made. San Francisco employers cannot inquire about applicants’ criminal records until after the initial job interview.
(b) Medical history
As a general matter, employers may not inquire about any mental or physical disability or medical condition, but may ask the applicant if he or she can perform the essential functions of the job.
The Fair Employment and Housing Act prohibits employers from requiring applicants to take a medical or psychological examination before the initial job offer (California Government Code, §§ 12900-12996). After extending an initial job offer, the employer may ask the applicant to undergo a pre-employment medical exam or laboratory test, so long as it relates specifically to the essential functions of the job.
Background check reports may not include medical information without the employee’s or applicant’s authorisation (California Civil Code, §1786.12(f)).
(c) Drug screening
There is no specific statute on drug screening but California courts have generally permitted employers to require employees to pass a drug test as a condition of employment, so long as it tests all applicants and does not single out certain applicants due to protected characteristics. Note that employers in certain safety-sensitive industries such as transportation and aviation are subject to federal drug testing laws.
The California Supreme Court has held that an employer may refuse to hire an applicant who tests positive for marijuana even where it is prescribed for medicinal purposes (Ross v RagingWire Telecomms, Inc, 42 Cal 4th 920 (2008)).
(d) Credit checks
Under the California Consumer Credit Reporting Agencies Act, employers generally may not obtain a consumer credit report or perform a credit check of an applicant or employee except in limited circumstances, such as where the position of the person for whom the report is requested involves:
- a managerial position;
- access to confidential/proprietary information or regular access to $10,000 or more of cash belonging to the employer/customer/client; or
- regular access to individuals’ bank or credit card account information or date of birth, or in cases where the person is, or would be, either a named signatory on the employer’s bank or credit card account, authorised to transfer money on the employer’s behalf or authorized to enter into financial contracts on the employer’s behalf.
Before obtaining a consumer credit report for employment purposes, employers must give written notice to the consumer specifying the exemption it is using to obtain the report (California Civil Code, §1785.20.5; California Labor Code, §1024.5).
(e) Immigration status
The federal Immigration Reform and Control Act sets out certain requirements to establish authorization to work in the United States. California has additional requirements prohibiting employers from engaging in unfair immigration-related practices, such as using E-Verify to check a person’s authorisation status at a time or in a manner not required under federal immigration law, or in retaliation for a person’s exercise of his or her employment rights under the Labor Code.
Under the recently enacted Section 1019.1 of the Labor Code, employers may not:
- request more or different documents than required under federal law to verify work authorization status;
- refuse to honor documents that look genuine;
- refuse to honor documents or work authorizations based on the specific status/term accompanying the authorization to work; or
- attempt to re-investigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice.
A penalty of up to $10,000 per violation may be recovered by the applicant, employee or the labor commissioner.
(f) Social media
While there is no specific statute prohibiting retrieval or review of applicant or employee social media information, relying on such information to make employment decisions can raise a host of issues under the state’s anti-discrimination and privacy laws. For example, an employer may be liable for discrimination if it conducts a social media search which reveals an applicant’s protected characteristics and then relies on such information in deciding whether to hire.
In addition, Section 7 of the National Labor Relations Act prohibits employers from discriminating or taking adverse action against employees who engage in protected concerted activity, which may include online discussions of wages, hours or other working conditions.
California employers must also refrain from asking applicants to access a personal social media account in its presence and may not require employees to provide log-in information for their social media accounts (California Labor Code, §980(b)).
Employers may not demand or require applicants or employees to take a polygraph test nor request an applicant or employee to take a polygraph test without first advising him or her of rights under Section 432.2 of the Labor Code.
Likewise, California employers cannot use the results of applicant or employee HIV tests for employment purposes (California Health and Safety Code, §120980(f)).
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