Being an employer in California is increasingly challenging. In the last few years, new laws have emerged that present additional risks to employers, not just with respect to employees, but also with respect to job applicants. As we discussed earlier this month, employers who conduct pre-employment background checks must provide employees separate standalone forms providing disclosure and consent under the Fair Credit Reporting Act and under California’s Investigative Consumer Reporting Agencies Act.
Employers should also be familiar with California’s “Ban the Box” law, which prohibits employers with at least five employees from asking about an applicant’s criminal history. An employer may only inquire about and consider an applicant’s criminal history after a conditional offer of employment is made. Even then, an employer cannot revoke a job offer to an employee with a criminal conviction without first conducting an individualized assessment. The assessment must consider 1) the nature and gravity of the offense and conduct; 2) the time since the offense occurred and the sentence completed; and 3) the nature of the job position. Though not required to do so, it is good practice for employers to keep a written record of any such assessment. This law means that if your application contains a question like “have you ever been convicted of a crime,” it must be removed. You can notify applicants that you will conduct background checks before employment begins.
Under another new California law reported on last year, employers may not seek information about an applicant’s salary history, and it may not rely on salary history in proposing a salary for the prospective employee. However, employers are not prohibited from asking an applicant about his or her salary expectation.
In light of new and ever-evolving laws, employers should consider having an attorney review their job applications to assess any potential exposure.