HOW THE LAW PREVENTS EMPLOYERS FROM FINDING OUT
By Thomas F. Nowland, Esq.
You painstakingly scour hiring apps and actively recruit quality candidates to fill positions, but how do you prevent hiring the next employment lawsuit that will end up costing your company tens of thousands of dollars to resolve?
Your first thought, and the prudent approach, is to do a thorough background check. Right? Wrong.
In California, the lawmakers have prevented employers from knowing about an employment candidate’s propensity to sue their employer and other prior acts, including criminal convictions, which would alert any employer to the risks of hiring that person.
Can An Employer Ask About a Candidate’s Criminal Past?
The California Legislature through Assembly Bill 1008 place severe limits on what information an employer may consider in hiring. Assembly Bill 1008 is codified into law as Government Code § 12952 and is known as the California Fair Chance Act.
Government Code § 12952 not only prevents an employer from inquiring about an applicant’s criminal history, but it also makes it unlawful to consider it in the hiring process and if it does the employer has to investigate and justify a decision not to hire:
(c)(1)(A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following:
(i) The nature and gravity of the offense or conduct.
(ii) The time that has passed since the offense or conduct and completion of the sentence.
(iii) The nature of the job held or sought.
In addition to criminal background checks, the law also prevents employers from denying employment to people with a history of filing lawsuits against employers.
Can An Employer Ask About Past Lawsuits?
An employer cannot use a past civil lawsuit to discriminate against an applicant based on protected characteristics (such as race, religion, gender, disability, or retaliation for exercising legal rights like filing a previous wage or discrimination claim). For example, asking about a past employment lawsuit to weed out someone who previously sued a former employer for discrimination can run afoul of retaliation and anti-discrimination protections.
Can Employer Ask About a Candidate’s Health?
The Americans with Disabilities Act, 42 United States Code § 12101, places restrictions on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.
An employer may ask a job applicant whether they can perform the job and how they would perform the job. The law allows an employer to condition a job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same job have to answer the questions or take the exam.
So, How Do I know I’m Not Hiring an Employee That Will Sue Me?
You don’t. The law prevents employers from finding out if a candidate is a criminal, if they have a history of filing lawsuits against employers, and if they have some physical disability or condition that may be exacerbated by the physical tasks of the job they are applying for.
So, there you have it. The next employee you hire may be a thief, a violent criminal, a vexatious litigant, or just someone that uses their physical health conditions to extract money from employers through workers compensation and other claims and there is nothing an employer can do to mitigate the possibility or prevent the hiring.
Good luck! As an employer you are going to need it.
For these and other employment issues refer to the Nowland Law Journal and contact the Law Offices of Thomas F. Nowland.
