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Summary of differences between federal and state regulations
There is no one federal law that specifically addresses employment applications, although there are record retention guidelines under a variety of federal laws (see the Recordkeeping topic) and non-discrimination provisions for hiring in general (see the Discrimination topic).
California law has numerous provisions:
An employee or applicant who signs any document related to obtaining or holding employment must receive a copy of that document upon request.
No employer may ask an applicant (either orally or in writing) about an arrest that did not result in conviction, or about the applicant’s participation in, or referral to, any pretrial or post-trial diversion program. Any information of this kind can not be used in determining any condition of employment. An employer may ask about an arrest for which the applicant is out on bail or on his or her own recognizance pending trial. Applicants for positions with access to drugs and medications and/or with regular access to patients may be asked to disclose an arrest in certain circumstances.
No employer may require an applicant or employee to agree in writing to any illegal term or condition of employment.
Effective October 1, 2023, employers and other covered entities are prohibited from inquiring into, considering, distributing, or disseminating information related to the criminal history of an applicant until after the employer has made a conditional offer of employment to the applicant. Prohibited consideration includes, but is not limited to, inquiring about criminal history through an employment application, background check, or internet searches. Employers are prohibited from including statements in job advertisements, postings, applications, or other materials that no persons with criminal history will be considered for hire, such as “No Felons” or “Must Have Clean Record.” Employers who violate the prohibition on inquiring into criminal history prior to making a conditional offer of employment may not, after extending a conditional offer of employment, use an applicant’s failure to disclose criminal history prior to the conditional offer as a factor in subsequent employment decisions, including denial of the position conditionally offered. If an applicant raises their criminal history voluntarily prior to receiving a conditional offer, the employer must not consider any information the employer is prohibited from considering. In addition, an employer is prohibited from considering any other conviction history information until after making a conditional offer of employment (some exceptions apply).
Salary history inquiries
Employers may not inquire into an applicant’s salary history orally or in writing. An applicant could voluntarily (without prompting) disclose salary history information. If an applicant voluntarily and without prompting discloses salary history information to a prospective employer, nothing prohibits an employer from considering or relying on that voluntarily disclosed salary history information in determining the salary for that applicant.
State
Contact
California Department of Industrial Relations Division of Labor Standards Enforcement
Regulations
CA Labor Code §432
CA Labor Code §432.7
CA Labor Code §432.5
Federal
Contacts
None.
Regulations
None.