As of January 1 2018, California law has changed significantly in regard to employer’s use of employment applications and background checks in their recruiting and hiring processes. Failure to comply with these new requirements can result in the imposition of fines and the creation of potential claims by candidates whose new rights were violated by not following the new requirements. Compliance can be achieved by employers through the use of redesigned employment applications and a restructuring of the timing of when background checks are done in the hiring process.
In regard to employment applications, it is no longer permissible to ask on the application whether an applicant has been convicted of a felony. This inquiry cannot be made by the employer until the employer has provided a conditional offer of employment to the applicant. Once a conditional offer of employment has been made to the applicant, the best practice is to then have the applicant answer the question of whether they have ever been convicted of a felony on a separate form and have the attest to the truthfulness of their response before the employer has a formal background check performed. This is done as an integrity test to ensure the applicants trustworthiness. The application also cannot inquire as to prior salary history. In fact, it is now impermissible for an employer to ever inquire as to the applicants prior salary history. Employers can certainly ask an applicant to tell them what they would like to make but they should preface such questions with an instruction to the applicant to not disclose their prior salary history.
In regard to background checks, these also cannot be performed until the applicant has received a conditional offer of employment. Moreover, these background checks can no longer be a one size fits all background check. Prior to even seeking applicants, employers should meet with their background check provider and decide upon the level of background check that should be done for each job description by identifying the legitimate business reasons why such information is relevant to whether the applicant is qualified for the position. This dialogue with the background check provider or the employer’s counsel should examine how far back the company will look at convictions and what types of convictions should disqualify an applicant. By way of example a 20 year old bar fight conviction when someone was in college may have no business relevance to a person’s ability to do their job today. It is imperative that employers speak with either their attorney or background check provider to come up with the criteria for what age and what type of convictions will serve as disqualifying convictions before the employer commences the hiring process to ensure that all applicants are treated the same in terms of these standards to avoid discrimination claims.
For further information or if you have any questions, contact the author at ryonowitz@fisherphillips.com.