WE REPRESENT AND ADVISE EMPLOYERS IN WORKPLACE DISPUTES
What are the protected classes in California that employers must be aware of?
Are California employers allowed to drug test prospective employees?
As an employer, can I base the salary of my new hire on her previous salary?
Can employers check credit or do criminal background checks on employees?
Recruiting and Hiring Laws in California
California has some of the most robust and complicated labor laws in the country. These laws require California companies to carefully avoid making hiring or promoting decisions based on discriminatory factors. Below we will discuss what California employers need to know before they try to hire someone into their workforce. This is a situation in which a little knowledge can prevent major problems down the road.
Understanding California’s Approach to Labor Law
As a geographic region with one of the largest economies in the world, California wants to position itself as an early adopter to the rest of the country and the world as a leader in fair labor laws. In order to position itself as a world leader, California has adopted federal standards and then taken them to the next level. For example, while the SCOTUS only just decided that the LGBT community is afforded protections under gender discrimination rules, California has had LGBT protections in place for years.
Protected Characteristics Under Federal and California Law
Civil rights laws are enacted and enforced at three separate levels. The federal government sets the baseline for the rest of the country. Less progressive states simply absorb the federal standards into their own state laws, while states like California go above and beyond. Further, individual cities and municipalities have enacted standards that are enforceable at the city or county level. A Los Angeles employer is expected to know all of these standards or face lawsuits. That is where the Wright Law Firm Employment Lawyers can help.
FEHA (The Fair Employment and Housing Act) is the California legislation that protects workers from discrimination. Protected characteristics include:
- Race/color/ethnicity/ancestry/nation of origin
- Religion/Creed/Political affiliation
- Handicap/disability/genetic information
- Marital or familial status
- Sex/gender/sexual orientation/gender expression
- Pregnancy including the ability to breastfeed at work
- Status as a veteran of the armed forces
It is therefore illegal to deny employment to any individual because they possess any of the above-mentioned characteristics. It is further illegal to harass or even make racial or sexual jokes that an employee may find uncomfortable. Harassment by other employees must also be quashed at the request of the harassed employee. Failure to comply with any of these strictures can result in a lawsuit filed against your company.
Can California Employers Drug Test Employees?
California is the only state in the country that explicitly mentions the right to privacy of employees. California assumes that all employees have a right to privacy. This prevents employers from asking certain types of questions or requesting genetic testing as part of a job application. It also limits their ability to drug test employees prior to hiring. An employer can require drug testing, but the prospective employee must be aware that the test is coming. An employer must therefore make an employee aware that drug testing is a requirement of the job. The employer cannot simply spring the test on the employee.
Can California Employers Perform Credit Checks on Employees?
Usually, the answer is no. Only certain job titles require credit checks, and an employer would generally know if they were hiring for a position that required a credit check. Most law enforcement positions require credit checks. Employers that hire for these positions must inform the applicant of the credit check in advance, and if any adverse action is taken against the applicant, they must be made aware of that as well.
Can California Employers Perform Criminal Background Checks?
Employers can perform criminal background checks on prospective applicants, but there are certain rules that must be followed. First, the employer must have a good reason for screening employees. The decision to perform background checks on employees must be consistent with the needs of the business. A good example would be a daycare screening employees to work with children. An employer may not consider the following types of situations when making the decision to hire an employee:
● An arrest not resulting in conviction
● Participation in diversion programs
● Convictions that have been sealed or expunged
● Incidents that were adjudicated as a juvenile
● A non-felony marijuana conviction that is more than two years old
Unequal Wage Claims and Recruiting and Hiring
California prohibits employers from making offers to employees based on their last salary. This is because women tend to make less money than men. That system would thus only perpetuate the unequal pay for equal work. Employers must offer static salaries to prospective employees regardless of their last salary.
What is “Ban the Box”?
“Ban the Box” makes it unlawful for employers to ask about an employee’s criminal history on the application. Employers may still perform background checks if the job requires it. In fact, an employer may not consider the employee’s criminal history until after they have received an offer.
How Do California Employers Stay in Compliance with All These Laws?
While the law may sound convoluted and confusing, there are general tactics that an employer can use to ensure that they are not the subject of employment discrimination lawsuits. The majority of these lawsuits are filed because the employer has decided that California’s labor laws should not apply to them. Employers can face lawsuits filed by employees or fines imposed on them by the State of California. A skilled employment lawyer at the Wright Law Firm can prevent the vast majority of these lawsuits before they occur simply by ensuring that an employer has all their bases covered.
As an example, all employees have a reasonable expectation of privacy. However, contract law can occasionally supersede that expectation. Employers who inform employees of required drug testing, criminal background checks, credit checks, or anything else face fewer problems down the road than employers who wait until the last minute before requesting this information.
In other words, having an employee handbook that meets the requirement of your business can prevent the vast majority of these lawsuits. Wright Law Firm Employment Attorneys can help your firm avoid costly and damaging lawsuits that threaten your company’s reputation in the age of cancel culture. Call today to schedule a consultation and discuss your needs with a skilled Los Angeles employment lawyer.