class 2 - hiring process legal issues

Question 1

must know:

Answer 1

 The three legal pitfalls the text identifies that may occur in the hiring
process.
 Legal issues raised in crafting a job description according to the text.
 Bona fide occupational qualifications and how they relate to job
descriptions.
 Basic legal issues of job advertising and how the text suggests you
overcome them.
 The legal issues raised by job applications, including resume fraud
 The categories of illegal interview questions and why they are illegal.
 An understanding of the California regulation that addresses questions in
job interviews, particularly the laws about inquiries into criminal history
and salary history.
 Law requiring disclosure of reasonably expected salary ranges, including
disclosure to current employees.
 California law limiting employer’s right to request or require access to
social media usernames and passwords.
 The result and reasoning in the Ullmer case.
 California law on how job applicants and current employees are treated
differently for purposes of drug testing and why.
 California law making off-duty marijuana use legally protected – to a
point. (See my Law at Work column on the topic.)
 The legal issues raised by Googling a job applicant, and otherwise
investigating a job applicant’s social media postings and how the text
suggests that an employer may minimize at least one of the legal risks in
doing such searches.
 California law limiting use of consumer credit reports in hiring process.
 The concept of negligent hiring and the tension it creates between an
employer’s duty to respect an applicant’s privacy, on the one hand, and the
employer’s duty to avoid harm to others, on the other hand.
 How the PBH case came out and the reasoning of the court.
 An understanding of the California regulation that addresses questions in
job interviews, particularly the laws about inquiries into criminal history

Question 2

Article - California Legislature Passes Pay Disclosure Measure

Answer 2

Large employers required to report pay data by race, ethnicity, sex to state agency
No later than the second Wednesday of May beginning in 2023, private employers with 100 or more employees, whether the employees are hired directly or through a labor contractor, will have to submit a pay data report to the California Civil Rights Department

The number of employees by race, ethnicity, and sex in each of ten job categories, including high-level executives and managers; middle management; professionals; sales workers; administrative support workers; craftspeople; laborers; and service worker

• New pay range disclosure requirements
  Under existing law, no employer may factor an applicant’s salary history into deciding whether to offer the applicant a job or, unless the applicant voluntarily discloses their salary history, into deciding what salary to offer the applicant.
  Nothing in the measure prohibits an employer from asking an applicant “about the applicant’s salary expectations for the position being applied for.”

Question 3

Article - Why Employers Must Use AI Carefully

Answer 3

Draft regulations of the California Civil Rights Council define “automated-decision system” as “[a] computational process that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision making that impacts applicants or employees.”
Employers using or considering using AI should note these recent developments

1. EEOC recently settled AI-related discrimination claim for $365,000
   EX: “programmed their application software to automatically reject female applicants over the age of 55 and male applicants over the age of 60.”
2. EEOC’s draft multi-year strategic enforcement plan prioritizes employer use of AI
   The SEP recognizes employers’ increasing use of AI, especially in targeting job advertisements and recruiting and hiring employees. To combat “technology-related employment discrimination,” the EEOC says it will focus on how employers’ use of technology contributes to unlawful employment discrimination.
3. EEOC issues recent guidance on avoiding discriminatory use of Ai
   On May 18, the EEOC issued technical guidance on how to use AI without adverse impact on applicants or employees based on their race, gender, age, or other protected categories, particularly in hiring, promotion, and firing decisions.

California AI regulations on the horizon
An employer may defend its use of an automated-decision system by showing using the automated-decision system “is job-related for the position in question and consistent with business necessity and there is no less discriminatory policy or practice” that would accomplish the employer’s goals.

Question 4

Article - California Employee’s Off-Duty Cannabis Use to Be Protected

Answer 4

California employers with five or more employees to discriminate against an applicant or employee based on offduty cannabis use away from the workplace or for failing an “employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The key change was to bar an employer from asking applicants about prior cannabis use

Does the new law bar pre-employment drug testing?
- No, but a drug test used to make employment decisions must be “scientifically valid” and must not screen for “nonpsychoactive cannabis metabolites.”
- The legislature noted that employers now have access to “multiple types of tests” that do not screen for nonpsychoactive metabolites

Will employers be allowed to discipline or fire employees who are cannabis-impaired at work?
- Yes. The new law does not “permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace … or any other rights or obligations of an employer

Are any employers exempt from the new prohibitions on considering applicant or employee off-duty drug use?
- Yes. The law excludes employers that must meet testing or employment requirements of any other state or federal laws that are inconsistent with the new law, including federal funding, licensing, and contracting laws.

Why did building and construction trades receive a limited carve-out from the law?
- A legislative analyst reviewing AB 2188 surmised that exempting employers in those trades from the prohibition on discrimination for off-duty cannabis use “could be viewed as a sub-category of the broader exemption for employers who have to discriminate and test for cannabis use pursuant to federal mandates.”

May an employer reject an applicant previously convicted of a cannabis-related crime
- Yes. The ban on requesting information from an applicant about prior cannabis use does not bar an employer from obtaining and considering information pursuant to Government Code Section 12952 about an applicant’s prior criminal convictions, including cannabis-related criminal convictions, after a conditional employment offer has been made.

Question 5

There are legal guidelines for drug tests:

Answer 5

Federal laws state that airline pilots and transportation EEs must.

The drug-free workplace act of 1988 requires all contractors with the federal government to certify that they will provide a drug-free workplace. To comply you must do all of the following:
- Inform workers that illegal use is prohibited
- Create and maintain drug awareness program
- Require EE notify you of any convictions for drug usage in workplace and you notify the government
- Impose remedial measures on EE convicted of drug use in workplace
- Does require you test employees

Question 5

There is no law that prevents you from combating the use of illegal drugs and alcohol in the workplace BUT there are some limits on your ability

Legally you are free to:

Answer 5

Prohibit usage in workplace
Require EE not come to work under the influence
Required EE who do use meet the same performance standards of other EES

Question 6

Discretionary testing

Answer 6

Pre-Employment testing is the safest type of testing from a legal standpoint
After an EE is hired testing is more tightly controlled by federal and state laws

If you decide to test, your primary motive should be to ensure the safety of workers, customers and members of the general public

Question 7

You’re most likely to withstand a legal challenge if you limit testing of employees to the following three situations:

Answer 7

1. Safety and security
   Periodically test employees whose jobs carry a high risk of injury and employees who are security workers and employees who work with vulnerable people
2. Accidents
   Likely require testing of an employee who’s been involved in an accident such as a food server who’s dumped a carafe of scalding coffee on a customer or maintance worker who drilled through a pipe
   Some states require post-accident testing olu if theres serious injury
3. Retesting
   Likely require periodic retesting of an EE who is currently in or had completed a drug rehabilitation program or EE given a second chance

You cant force EE to submit test at will but you can fire them in most cases

Avoid a policy of testing all employees
You might get sued if you test them all or test them randomly or without good reason

Question 8

To keep your drug testing program on a solid legal footing, follow all of these guidelines:

Answer 8

Provide written notice to employees obtain written consent
Use a test lab that’s certified by the US Department of Health and Human Services or accredited by the COllege of American Pathologists
Keep the results of drug tests confidential
Be consistent in dealing with those who test positive
Review your plans with a lawyer– before you implement the program and before you test anyone

Question 9

Alcoholism - The law treats alcoholism differently from drug abuse

Answer 9

A person disabled by alcoholism is entitled to the same protection from job discrimination as any other person with a disability
You are not required to overlook the effects that this disability can have on job performance
Under the ADA you can discipline, discharge, or deny employment to an alcoholic if the person;s job performance or conduct is so badly affected by alcohol usage that the worker isn’t qualified to do the job

Question 10

Anti-Discrimination laws apply to all stages of employment process

Answer 10

Preparing job descriptions
Writing ads
Conducting interviews
Deciding who to hire
Setting salaries
Job benefits
Promoting employees
Disciplining and firing them

Anti Discrimination laws don’t dictate whom you must hire
Problems may arise if your means of seeking out candidates is deemed discriminatory
Word of mouth → all white men EE

Question 11

To avoid violating anti discrimination laws at the hiring stage, you should:

Answer 11

Advertise job openings in a variety of places so they come to the attention of a wide pool of applicants.

Determine which skills, education, and other attributes are truly necessary to perform the job so that you don’t impose job requirements that unnecessarily exclude capable applicants.

Avoid application forms and screening techniques that have an unfair impact on any group of applicants

Question 12

Requesting applicants’ privacy rights

Answer 12

There are multiple laws regulating how and when you can request transcripts, credit reports, and other background information
- Prohibit social media account passwords
- Prohibit aptitude and drug tests

You can’t dictate whether you can hire an employee based on outside conduct unless its illegal
Avoid rejecting candidates for lifestyle reasons or off-duty conduct unless you have a convincing business purpose

Question 13

During the hiring process, don’t make promises that you may not honor.

Answer 13

Best protection for you is to offer application forms, handbooks and offers of employment that state that the job is at will and that EE must acknowledge this in writing

Another way to protect yourself is to always have a good business-related reason for firing an employee
Firing for cause

Question 14

Prevent negligent hiring claims

Answer 14

You investigate an applicant’s background because you want to make sure they are a good fit and will work well with others

Another reason would be that they may expose customers and others to danger so you must do a background check

Legally you have the duty to protect customers and your EEs

If someone gets hurt and you didn’t do a background check you may be subject to a lawsuit for negligent hiring

Question 15

You can be faulted for not looking into an applicant’s criminal convictions, but not for failing to learn about prior arrests that didn’t result in convictions, because such arrest records are often protected by privacy laws

Answer 15

Check for felony convictions
Be diligent in contacting all previous employers
Keep a written record of your investigation efforts
Insist that the applicant explain any gaps in employment
Consider turning over the prehire investigation to professionals who do this for a living

Question 16

Protect against unfair competition

Answer 16

When you hire workers you may run the risk that they will later go to competing businesses so they may use the info or contacts they gained at your workplace to draw away business from you

How to protect your business:
- Ask new hires to sign agreements to not disclose trade secrets
- Select employees to sign covenants not to compete with your business
–> Must be written carefully so that a farmer employee has a reasonable chance to earn a living

Question 17

Trade secrets - To qualify for trade secret protection, your business information must meet two requirements

Answer 17

EX:
A restaurant’s recipe for a special salad dressing and muffin that draws people in
A company’s list of 500 customers in which it provides maintenance
A computer company’s unique process for speedily assembling computer boards

1. You must show that you have taken steps to keep the information secret
   - keeping it in a secure place such as a locked cabinet or password- protected database
   - giving employees access to it on a need-to-know basis only
   - informing employees that the information is proprietary, and
   - requiring employees to acknowledge in writing that the information is a trade secret.
2. The information must not be freely available from other sources. Must be guarded information that is not generally available
   EX: recipe found in a cookbook unless they went the extra mile and translated it

Question 18

Covenants not to compete - To prevent employees from competing with you after leaving your workplace, consider having them sign a covenant not to compete

Answer 18

In a typical non compete, the employee agrees not to become an owner or employee of a business that competes with yours for a specific period of time in a specific location

Best time to secure a covenant not to compete is when you hire a employee (due to payroll with EE has less leverage to compete)

Question 19

In evaluating whether a covenant not to compete is reasonable, focus on these three questions:

Answer 19

Is there a legitimate business reason for restricting the future activities of the particular employee
Is the covenant reasonably limited in time
Is the covenant reasonably limited as to geographic scope

Question 20

Necessary Elements

Answer 20

A well-drafted description usually contains these components:
- Qualifications, such as necessary skills, education, experience and licenses
- Essential job functions
- Nonessential job functions

Question 21

An ER may have a legitimate reason to seek an employee of a particular gender, religion or ethnicity due to a bona fide occupational qualification (BFOQ)

Answer 21

Religion, sex or national origin can be BFOQs only if it is reasonable necessary qualification for the normal operation of a business
Race can never be a BFOQ
Courts rarely side with BFOQs

Religion can be a job requirement if it involves religious duties
National origin can be a BFOQ but very rarely

Gender can be a BFOQ when the job affects personal privacy
- Security guards to search employees
- Restroom attendants
- Acting and modeling work

Question 22

words to avoid when posting a job

Answer 22

3-5 years (X)
Over 3 years (YES)
_man (X)
perso (YES)
waiter (X)
server (YES)

Requiring a HS or college degree may be discriminatory in some job categories
Say: a degree or equivalent experience

Help wanted ads placed by federal contractors must state that all qualified applicants will receive consideration for employment without regard to race etc.
Ads often express this with the phrase “An Equal Opportunity Employer” (EOE)

Question 23

understanding pay transparency laws

Answer 23

require employers to disclose wage scale/salary range for open positions
ERs with 15 or more EEs

Question 24

Avoiding unlawful questions - The chart below (Pre-Employment inquiries) outlines the type of information you can ask for in applications and during job interviews

Answer 24

Cant ask about previous salary
Cant ask about disabilities to the extent of severity or nature

Pre Employment inquiries
- name
- birthplace (unlawful)
- age (18+ ok)
- religion (unlawful)
- race (unlawful)
- photo (unlawful)
- height/weight (unlawful)
- marital status (is spouse related to er ok)
- gender (ul)
- sexual orientation (ul)
- disability (esential job functions)
- citizenship
- national origin (ul)
- education (ul)
- experince
- arrests (ul kinda)

Question 25

After you make a conditional job offer and before an applicant starts work, you are free to gather more details

Answer 25

At that point you can require a medical exam or ask health-related questions but only if you require this for all candidates who receive conditional offers in the same job category

Question 26

Interviewing protocol

Answer 26

Start by giving applicant some information about the job
Duties, hours, pay range, benefits and career opportunities

Question the applicant on their work history and experience
Be careful so that the candidate does not provide trade secrets
Also make sure the applicant does not spouts a litany of complaints against former employers as your business might end up becoming the next object of their complaint
If you learn that the applicant sued a former employer with discrimination charges and you refused to hire them this may be considered retaliation

Question 27

medical tests

Answer 27

To avoid violating the ADA, do not ask applicants about their medical history or conduct an exam before making a job offer
You can offer a job conditioned on an applicant passing a medical exam
If you do this you must require exams for all entering EE who will be doing the same job
Scope of medical exams doesn’t need to be identical for all employees
You can require a full physical exam after job offer

If you withdraw a conditional job offer based on results of an exam you must be able to show the following:
- reason were job related and consistent with business necessity or to avoid issue with safety
- no reasonable accommodation could be made (undue hardship)

Question 28

Federal contractors must comply with the drug-free workplace act

Answer 28

If your business has a contract with the federal government for $100,000 or more (for something other than goods you’re selling to the government), you need to notify employees that they’re prohibited from unlawfully making, distributing, possessing or using controlled substances in your workplace.

You also need to set up an awareness program that tells workers about the dangers of drug abuse while at work and lets them know about assistance programs that may be available.

Question 29

Some states allow you some leeway in screening job applicants than in testing employees who are already on board

Answer 29

Better to tell applicants upfront about drug testing
Once an applicant becomes an employee, the rules may be more restrictive
Testing is usually permitted when employees have been in an accident or you’ve seen them bring illegal drugs to work
Your legal right to test at random and without prior notice is not as clear, in some states

Question 30

What about marijuana testing?

Answer 30

More than two-thirds of the states have legalized the use of medical marijuana. 20+ states have decriminalized it for recreational use.
This does not mean that you can not test employees or fire them for using marijuana if they test positive (even if it is medically necessary)
However, other states protect EEs from termination from this
This is rapidly changing, but if in a state that has decriminalized the use of marijuana (rec or med) then talk to lawyer before adopting a drug testing program/fire anyone

Recovering addicts are protected from discrimination but not if they are currently engaged in the illegal use of drugs.
The ADA prohibits discrimination of those with previous drug problems
This includes people who no longer use drugs illegally and are receiving treatment/success in rehab etc.
However, if an applicant tests positive for drug use, addiction is not a defense
Must be previous issue not current even if it addiction

Question 31

Investigate to verify applicant application information - You have to investigate for legitness but you can not go overboard and violate the applicant’s legal right to privacy

Answer 31

How to reduce risk of invasion of privacy claim:
1. Seek only background info you really need to figure out whether applicant is suited for job
2. Inform the applicant, in the job application, that you will be requesting info from– for example– schools, credit reporting agencies, former EEs and law enforcement agencies

Question 32

Fair Credit Reporting Act (FCRA)

Answer 32

imposes strict rules on the ordering and use of consumer reports, including background checks, credit reports and other information gathered on applicants for employment

Question 33

Which background checks are covered?

Answer 33

The FCRA regulates your ordering and use of any report prepared by a consumer reporting agency (CRA) which is any business that assembles such reports for other business
If you order an applicant’s credit report from a credit bureau, that is a consumer report covered by the FCRA
So is a report you order from a business about an applicant’s driving record/criminal history

If you want to hire a CRA (detective agency or professional investigator) this would also constitute a consumer report and be covered by the FCRA
Checking an applicant’s references may or may not fall under the FCRA
If someone in your company checks, FCRA does not apply
If you use an employment or reference-checking agency (anyone outside the company) you must comply with the FCRA

Question 34

Before you get a consumer report for employment purposes, you must notify the applicant or employee in writing and get that person’s written permission to gather the information
The consent must be on a separate, stand-alone document and it may not be part of your employment application form or general consent form allowing you to check a variety of records

Answer 34

In the hiring process, this is likely to come up if you decide (based on the report) not to hire the applicant
In this case, you must take the following steps:

Step 1
Before you take adverse action, you must give the applicant or employee a copy of the consumer report and a copy of A Summary of Your Rights Under the Fair Credit Reporting Action– published by the FTC. the business that prepared the report will give you the Summary or you can get a copy

Step 2
After you take an adverse action, you must notify the applicant or employee that you’ve taken the action
You can give notice orally, in writing, by email or by fax.

Question 35

Credit history

Answer 35

Credit information usually isn’t relevant to employment, but it might come into play if you hire someone who will handle money
A credit check may be unnecessary for most other situations and may be considered an intrusion into the applicant’s private life
Unless you have a good reason for doing a credit check you may run into antidiscrimination laws
The EEOC states that requiring an applicant to have good credit may discriminate against some minority groups
There are some laws in some states that bar ERs from obtaining credit reports
Be sure to get applicant’s written permission first
Required by the federal Fair Credit Reporting Act and may be mandated by state law
If you decide not to hire the applicant because of the report results then you must notify them

Question 36

Convictions are another matter

Answer 36

It can be unlawful discrimination to automatically exclude every applicant who has ever been convicted of any crime, anti discrimination laws generally do allow you to inquire about an applicant’s conviction record and to reject an applicant because of a conviction thats job related
EX: Truck driver
State laws may prohibit you from asking about arrest records
Some may even restrict your inquiries into an applicant’s criminal history
In many states you can not ask about juvenile records
In some state you can not ask about convictions for minor offenses or misdemeanors that go back more than five years if they have had a clean slate since
Many states have passed “ban-the box” laws and ordinances, which prohibit employers from asking about convictions in employment application forms
You may still ask about convictions during the interview process but you may not adopt a blanket policy of excluding anyone with a criminal record at the initial application stage
However, some states you may be required to conduct a criminal records check if a prospective employee is dealing with vulnerable people (elderly, children)

Question 37

A judge/jury reviewing the firing may conclude that your glowing statements were actually a contractual promise (ex: that the applicant;s job would be secure for years/you wouldn’t fire the applicant without good cause)

To protect yourself, you can write an offer letter that include the following elements:

Answer 37

title of the position that you’re offering
date the job begins
starting salary
reference to the employee handbook (if you have one)
job benefits
disclaimer of oral commitments
reminder of at-will status, and
a statement explaining (and limiting) how the at-will relationship can be altered in the future. Many companies require the signed consent of an important company official, like the president.

Question 38

Legal issues resulted from job qualifications:

Essential job functions

Answer 38

ADA Act: Prevents exclusion just because an individual can not perform marginal duties. → focus on ESSENTIAL DUTIES
ESSENTIAL vs NON-ESSENTIAL
Limited cases where employer can discriminate against workers and applicants because of BFOQs
Race is not qualified for BFOQs but gender is
Modeling, acting and security (guards and restroom attendees)

Question 39

In CA, you can no longer ask if applicant has been convicted of a crime you can only ask about their general record after a conditional offer

Answer 39

Why?
The concern is that you will screen everyone out without giving them a chance and there is concern that you will be targeting those who are low-income and minorities
Still this is not a protected class so you can, after finding out LATER ON, fire them

Question 40

(SKIT): The case of unfit to be hired: The law of interviewing

Answer 40

Context: It is April 30, 2004. Cynthia Ulmer is applying to be a Fitness Consultant with Midwest Fitness. A Fitness Consultant is primarily a sales position with compensation based on the number of gym memberships sold. She has successfully interviewed with Human Resources Coordinator Larry Leas and is now having her final interview, which is being conducted by the club’s part-owner and General Manager Joel Potter and the Club’s Manager Rowena Hague

Legal Question: Whether the questions were unlawful (discriminatory)?

Outcome: Court threw out Cynthia’s claims (sexual discrimination, age, marital, family) because they are personal, but did not conclude sex discrimination or bias to protected class. They had a legitimate reason to not hire her because she lied about her business. They rejected claim of discrimination about national origin too.

Discussion:
Interviewer asked about marriage status and family history. Applicants exposed her ancestry. Interviewer also asked why parents didn’t have more children. Asked very personal questions. Also asked about credit card inquiries… Nordstrom. Birth-order (trying to figure out ages).
Relationship with mother.. Some of these have nothing to do with the job :/

Question 41

(SKIT): The case of cannabis wrecks: the law of background investigations and drug tests

Answer 41

Context: It is Wednesday, June 14, 1995 at the San Diego facility of Pilkington Barnes Hind (“PBH”), a company that manufactures and markets contact lenses. John Visbal is in his first full week as a manager with the company, having moved his family from San Francisco on June 5 to take the job. Julie Vaughn, Chief Operating Officer, and Michelle Washington, the head of human resources, have just arrived at John’s cubicle

Legal Question: Can the company legally terminate him based on the drug test results/off-site marijuana use?

Outcome: Court ruled against John. Even though he was an employee, the delay was his fault and there was a condition that he MUST PASS THE TEST because John pushed back the test date not the employer. Depends on nature of test could have changed outcome.

Discussion:
He was an employee when he took the test– he was on Payroll
Law states you can test all applicants but can not discriminate against them based on off-duty use of marijuana (unless you’re a federal contractor and building/construction trades because of safety)
Test that does not test for non-psychoactive cannabis metabolites (make you psycho-active/high) are ok

Question 42

If you test an employee you NEED:

Answer 42

Probable cause that there is suspicion that it is impacting their work and something is off with them
Reasonable suspicion includes: spilling things, lower performance standards now, drastic change in behavior and temperament, slurred speech, scent etc.
You need to document why you are testing this employee and find stuff in your investigation
Must be scientific and cannot test non-psychoactive metabolites

CA: Can’t punish people for off-site use because legal status in CA (decriminalized).
Can tests applicants but not workers
Why applicants? → You have vetted employees and have a relationship with them

Question 43

handout 1

Answer 43

Under California law, it is illegal for an employer to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital-status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decision-making, or veteran or military status. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels that action.

Question 44

fill in - WHY CERTAIN INTERVIEW QUESTIONS ARE UNACCEPTABLE

Answer 44

NAME: You can’t ask about an applicant’s original name because it suggests national origin. You can’t ask about the applicant’s original name because it suggests marital status.

ADDRESS: You can’t ask an applicant whether they rent or own because it may invade the applicant’s financial status/privacy.

BIRTHPLACE: You can’t ask about an applicant’s birthplace because of national origin.

AGE: You can’t ask an applicant’s age or date of graduation from high school because it suggests age.
Young people are sometimes protected with age discrimination. Old people (40) are always protected because

RELIGION OR CREED: You can’t ask about the religious holidays an applicant observes because it suggests religious discrimination.
They might take off from your PTO or this may prevent you from being hired

RACE OR COLOR: You can’t ask about an applicant’s complexion or the color of their hair or eyes because such questions suggest inquiry into race.

SEXUAL ORIENTATION: You can’t ask about an applicant’s sexual orientation because it suggests you may favor one sexual orientation over another.

PHOTOGRAPH: You can’t require an applicant to furnish a photograph before being hired because this can lead to obvious discrimination/screening for race.

HEIGHT AND WEIGHT: You can’t ask about an applicant’s height and weight because it may raise concerns about disability discrimination.

PHYSICAL OR MENTAL DISABILITY: You can’t ask about an applicant’s mental or physical disabilities that are not directly related to the essential functions of the job. You may ask if an applicant can perform essential functions of the job and how the applicant would perform them.

MARITAL STATUS: You can’t ask about an applicant’s marital status except to determine if the applicant be related to someone on the staff because that’s nepotism/conflict of interest.

ARRESTS: You can’t ask about their criminal record or consider it unless a conditional offer of employment is made.

ORGANIZATIONS: You can’t ask an applicant for a complete list of all clubs and organizations to which the applicant belongs because such an inquiry may indicate the race, religion, etc of its membership.

SALARY HISTORY: Shown in other handout

CRIMINAL RECORD: You can’t ask an applicant about, or otherwise consider, the applicant’s criminal record until a conditional offer of employment has been made.

Question 45

fill in - STATE LAW PROHIBITION ON ASKING ABOUT SOCIAL MEDIA ACCESS INFO

Answer 45

California employers may not request or require employees or employment applicants to disclose their social media usernames or passwords or require employees to access their personal social media in the presence of the employer. It is now also generally illegal for a California employer to fire or otherwise discipline an employee for refusing a demand or request for social media passwords or a demand or request that the employee access personal social media in the employer’s presence.

Employers are, however, free to access all public aspects of a prospective employee’s social media accounts. The burden remains on the individual social media user to limit access to their own social media profile and other content. In other words, it’s up to applicants and employees to set their privacy settings appropriately.

Nonetheless, some employers as a matter of practice refrain from accessing even public areas of prospective and current employees’ social media pages since employers do not want to have to demonstrate that they did not rely on information disclosed in those pages that can not lawfully be used to make employment decisions.

California law expressly allows an employer to require that its employees share their passwords to enable the employer to access electronic devices that the employer itself issues. The new law also allows an employer to ask an employee to disclose personal social media reasonably believed to be relevant to an investigation into the employee’s workplace misconduct, such as sexual harassment.

Question 46

fill in - CALIFORNIA EMPLOYER’S USE OF CONSUMER CREDIT REPORTS

Answer 46

An employer or prospective employer may not use a consumer credit report for employment purposes unless the position of the person for whom the report is sought is, among other categories such as law enforcement, any of the following:
· A managerial position, meaning a position that meets the test for an executive exemption under Wage Order No. 4.
· A position that involves regular access, for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, to all of the following types of information of any one person: (A) Bank or credit card account information; (B) Social security number; (C) Date of birth.
· A position in which the person is, or would be, authorized to enter into financial contracts on behalf of the employer.
· A position that involves access to confidential or proprietary information, including trade secret information.
· A position that involves regular access to cash totaling $10,000 or more of the employer, a customer, or client, during the workday.

Prior to requesting a consumer credit report for employment, an employer or prospective employer must notify the individual of the specific exception that applies to him or her. The notice must inform the applicant or employee of the source of the report and contain a box that the person may check off to receive a copy of the report.

An applicant must be advised when an employer denies him or her employment wholly or partly because of information in a credit report and must be given the name and address of the consumer credit reporting agency making the report.

Question 47

fill in - EMPLOYER LIABILITY FOR NEGLIGENT HIRING

Answer 47

An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit. The employer will be liable if the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.

Question 48

PART 1 FILL-INS

Answer 48

Under California law, it is illegal for an employer to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decision making, or veteran or military status. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels that action.

Question 49

PART 2 FILL-INS

Answer 49

MARIJUANA AND THE WORKPLACE

It is unlawful, with certain exceptions, for California employers with five or more employees to discriminate against an applicant or employee based on off-duty cannabis use away from the workplace or for failing an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Question 50

fill in - STATE LAW LIMITS ON INTERVIEW QUESTIONS - criminal history

Answer 50

Criminal History

· Criminal Record: A California employer with five or more employees is prohibited from including on an application a question (such as a box to be checked) concerning an applicant’s criminal convictions until the applicant has received a conditional employment offer. The law further prohibits inquiry about, or consideration of, such convictions in deciding whether to extend such a job offer. These prohibitions are designed to avoid summary disqualification of an applicant with a criminal record.
· A California employer may conduct a criminal background check after extending a conditional job offer. If, after reviewing the background report, the employer is inclined to reject the applicant “solely or in part” because of the applicant’s criminal record, the law requires the employer to make an “individualized assessment,” which need not be in writing, of whether the applicant’s conviction(s) have a direct, negative relationship to the “specific duties” of the job. In making that assessment, the law requires the employer to consider: (1) the nature and gravity of the crime; (2) the passage of time since the offense and completed sentence; and (3) the nature of the job.

A legislative analyst observed that “as a practical matter, th[is] requirement will act as more of a guideline. There is no indication of how long or thoughtful the employer’s assessment must be and no obvious way to prove whether or not the employer actually undertook it. However, wise human resource managers may very well take up a practice of” putting the assessment in writing to avoid later speculation about the “content of that assessment”. Beware: that writing will be scrutinized if a disappointed applicant later sues.

Question 51

fill in - STATE LAW LIMITS ON INTERVIEW QUESTIONS - salary history

Answer 51

salary to offer the applicant and whether to offer the applicant a job at all. Employers also are barred from seeking an applicant’s salary history information “orally or in writing, personally or through an agent.”

An employer must provide the applicant with the pay scale for the position “upon reasonable request.” An employer may be able to satisfy this obligation by including the salary range in posted or published announcements of the job opening.
If an applicant voluntarily discloses his or her salary history, the employer may consider that information “in determining the salary for that applicant,” though probably not as a baseline for the salary offered to other applicants.

This is the latest legislative effort toward closing the gender gap in wages. According to the author of the measure, closing that gap “starts with barring employers from asking questions about salary history so that previous salary discrimination is not perpetuated.”.