With Gov. Jerry Brown signing some new bills into law last year (2017), it is essential for California entrepreneurs and lawyers to familiarize themselves with them. The new laws are diverse. They range from workplace protection laws, wages and hours, health and safety, leave and benefits to hiring practices laws.

Some of these mentioned laws are already in effect. They took effect on 1st January 2018. Therefore, all concerned employers should abide by these hiring practices to the last detail.

Background Checks

It is a common practice for employers to look into an applicant’s history and background. California employers should be careful and make sure they comply with the new laws that relate to hiring practices. The current situation implies that it is naive to judge a person’s competence based on their past.

Employers should not make their hiring decisions based on detentions or arrests that did not lead to a conviction in a court of law. They should also know that such decisions should not be based on participation and referral to any post or pre-trial diversionary program. Such measures no longer apply as they are deemed as discriminatory.

It is now unlawful for employers to:

1. a) Seek to know about conviction histories of potential employees. They should not ask for such information in any job application form.
2. b) Put into consideration the conviction history of a potential employee unless there is a conditional offer made to the job applicant.
3. c) Disseminate, distribute or consider any information that relates to specific prior convictions, diversions, and arrests.

One can no longer deny an applicant a job position solely because of their conviction history. When an employer seeks to do so, they should be able to point out and prove that such history will directly get in the way of the job’s duties.

If the employer can prove this, they should write to the applicant informing them of the reasons for such a decision. After this, the applicant can respond within five days. In case the applicant disputes such a decision based on facts and accuracy, he or she has five more days to get documents that support his or her claims and respond to notice of assessment.

However, various jobs are exempt from this rule. These include:

a) Criminal justice positions.

b) Local or state agency positions whereby one is expected to run background checks based on convictions.

c) Farm laborer contractor positions.

d) Positions where employers are required by federal, state or local law to run background checks based on criminal histories.

Determining Salary

Employers are also not allowed to inquire about an applicant’s salary history to determine if they will offer employment or what salary they will pay. They should not do this personally or through an agent.

The only time when an employer may consider salary history is when an applicant voluntarily, without any coercion or duress, gives out this information. Employers may also do this by use of information from Acts like Federal Information or Public Records although this process may be hectic and cumbersome.

All employers, including local or state governments, will upon the request of an applicant provide information about the pay scale of the sought position.

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Although state law varies it is standard procedure for employers who are within their legal rights of hire to do background checks on potential employees. This is to reasonably safe guard against any persons with culpable backgrounds who could become a liability to the company if their offense reigns contrary to the position they may hold. For example, a Bank Manager would not want to hire someone accused of robbery or fraud. Many positions come with some amount of confidentiality and trust of valuable resources. A company just wishes to ensure that whatever classified information and resources for which they are held responsible is being manger by the best person possible.

Outside of the obvious references, school records and past employers legitimate checks by the employers will include the following: Credit reports, Driving record, Criminal records, Medical records drug testing, sex offenders list and court records.

Federal laws concerning background checks is governed by the Fair credit reporting act (FCRA). This law is responsible for the regulation of outside reporting agencies, and consumer reporting agencies. The Employers will have to get your permission for a background check from these agencies. Please note that if based on the report the employer refuses to hire you or fires you as a result you are entitled to receiving a copy of said background check which can be used in your defense to these allegations. Also ensure that you have a copy of “A summary of your rights” under the fair credit reporting act to substantiate claims.

On a normal basis you have to pay to get a credit report. However, the following are instances where you could get the information for free.

• Person having taken action against based on your credit report.
• As a victim of identity theft and there is a fraud alert placed on you file as a result
• As an unemployed with the expectancy of applying for a job in 60 days

Remember you are entitled to request an annual credit report for free at annualcreditreport.com

Any discrepancies concerning wrong or outdated reports you should write to the credit reporting company and the information provider for expediency. Also based on statutes of limitation laws the credit report company cannot send out negative or incriminating reports seven or ten years old. Find more information on the FTC Consumer website.

If you suspect that there has been a violation to your privacy on the above premises, contact us at the United Employees Law Group with regard to work place laws and ethics and your rights as an employee.

Photo Credit: Shutterstock/Zoran Orcik

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