Part I of a Two-Part Series on Hiring; Part II addresses best practices after hiring.
With the recent Covid-19 hiring surge, it is the perfect time for employers to review their hiring policies and practices. While most California employers are familiar with the Fair Employment and Housing Act (FEHA), which makes it illegal for employers with five or more employees to discriminate against employees on the basis of a protected category, it is easy for employers to forget that FEHA protections also apply to job applicants.
An employer’s obligation under the FEHA starts before the employer even meets a job applicant. Employers should start thinking about their FEHA obligations as soon as they decide to hire a new employee. Read below for best practices to help you lawfully navigate the hiring process.
EMPLOYMENT APPLICATION FORMS
California does not require any specific language or elements that must be included in employment applications, however there are plenty of laws regarding what should not be included. Some examples of items to remove from your employment applications include:
Inquiries Related To A Protected Category: Protected categories include age, race, ethnicity, disability, marital status, genetics, sexual orientation, veteran status, religion, ancestry, age (over 40), citizenship, family status and other categories protected by law. Examples include asking whether an applicant is married or if has a disability. There are limited exceptions for business necessity including asking about age relating to the service of alcohol, which requires that an employee be over 21, or where the applicant is a minor and would be required to provide proof of a valid work permit.
Conviction History: In 2018, California’s “Ban the Box Law” went into effect limiting what employers, with five or more employees, may ask about an applicant’s conviction history before making a conditional offer of employment. Specifically, “Ban the Box” limits questions about an applicant’s criminal conviction history until after a conditional offer of employment has been made. Additionally, there are restrictions on asking an applicant about their arrest and/or non-felony convictions relating to marijuana both before or after a conditional offer has been made. Some counties have local ordinances regarding criminal background checks that employers also must comply with.
Prior Salary: Employers are prohibited from asking about an applicant’s salary history, including compensation and benefits. However, while employers cannot ask about an applicant’s salary history, they can ask about salary expectations
Photographs: Employers cannot request that applicants attach or submit a photograph with their application.
Social Media Access: An employer cannot require an employee or an applicant to disclose a username or password for the purpose of accessing personal social media, to access social media in front of the employer, or to divulge any personal social media (subject to limited exceptions). Further, employers should heed that by viewing an applicant’s social media profile prior to making an offer of employment, they may learn of the applicant’s inclusion in a protected class – knowledge which could lead to or support future discrimination claims should the applicant not receive an offer of employment.
WHAT CAN / SHOULD BE INCLUDED ON AN EMPLOYMENT APPLICATION?
In addition to basic application questions such as educational history and prior positions held, employers should consider including the following in their employment applications:
At-Will Acknowledgment: The presumption in California is that barring a written contract to the contrary, employees are employed on an at-will basis, meaning they can be terminated with or without notice or cause. Including an at-will language on a job application (in addition to other onboarding documents) provides additional protections to employers from claims that an employee is contractually entitled to employment for a specified length of time and /or job protections beyond those provided by statute.
Notice of Intent to Seek Consumer or Criminal Background Checks: Employers seeking consumer or criminal background checks are required to provide advanced written notice, with specific requirements, to applicants or employees. However, a criminal background check cannot be run until after a conditional offer of employment has been made.
QUESTIONS TO AVOID DURING THE INTERVIEW
The FEHA prohibits asking non-job-related questions to applicants that either directly or indirectly relate to their inclusion in a protected class. Some examples of permissible versus impermissible questions include:
Don’t Ask: “I love your accent, where are you from?”
Do Ask: If hired, can you submit verification of legal right to work in the US?
Don’t Ask: “Does your religion prevent you from working any holidays or weekends?”
Do Ask: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?”
Don’t Ask: “I saw you limping, what happened?” or “Do you have a disability that prevents you from performing job duties?”
Do Ask: “If hired, can you perform the necessary job duties with or without an accommodation?”
Don’t Ask: “How much money did you make in your last position?”
Do Ask: “What are your salary expectations?”
These are somewhat simplified examples, but the takeaway is that it can be quite easy to ask questions that either directly or indirectly relate to protected categories. Employers should prepare interview questions in advance, be intentional about the questions asked, and make sure that staff conducting interviews are appropriately trained regarding prohibited interview topics.
Keep in mind that this is just a bird’s eye view of issues employers should be aware of when hiring a new employee. In reality these laws are much more nuanced. Employers should also recognize that local ordinances and regulations may impose more intensive and protective procedures than those addressed in this article. Because the circumstances of each employment situation and an employer’s hiring needs will likely differ it is always a best practice to seek guidance from employment counsel to address your specific issues.
Attorneys at Duggan McHugh Law Corporation are available to guide employers through the interview and hiring process.