['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In California, an employer/former employer may disclose a communication about job performance or qualifications of a person to a prospective employer upon request if:
- The communication is based on credible evidence,
- The communication is made without malice, and
- The employer/former employer believes he/she is communicating with a prospective employer.
This includes saying whether or not he/she would rehire the employee/former employee. This does not include any communication about speech or activities protected by the constitution or law.
A former employer may disclose a truthful statement about why a former employee was discharged or left voluntarily, according to Labor Code Section 1053.
No business establishment may blacklist a person because of the reasons listed under the California Civil Code 51.5. An employer may not use or allow the use of misrepresentation to prevent or try to prevent a former employee from obtaining employment.
Arrest record inquiries
In California, an employer may not ask an applicant about any arrest that did not lead to conviction nor any arrest whereby the applicant successfully completed a pretrial diversion program. However, an employer may ask an employee or applicant about an arrest if the person is out on bail or on his or her own pending trial. These prohibitions do not apply to those employed as or seeking employment as a peace officer, Department of Justice worker, or certain healthcare workers who have access to patients or drugs. See the “Pre-Employment Inquiry Guidelines” (DFEH-161) from the Department of Fair Employment and Housing for more information.
Conviction record inquiries
California does not prohibit an employer from asking about conviction records, except conviction records that have been sealed, expunged, or statutorily eradicated. See the “Pre-Employment Inquiry Guidelines” (DFEH-161) from the Department of Fair Employment and Housing for more information.
However, the EEOC’s Notice N-915 says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII [of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
California Department of Fair Employment and Housing
California Department of Industrial Relations Office of the Director
Arrest record inquiries
California Department of Fair Employment and Housing
Conviction record inquiries
California Department of Fair Employment and Housing
Regulations
Employer immunity from disclosure claims
California Civil Code Section 47
California Civil Code Section 51
California Labor Code Section 1050
California Labor Code 1052
California Labor Code Section 1053
Arrest record inquiries
California Labor Code Section 432.7
California Penal Code Section 13203
California Code of Regulations Section 11017
Conviction record inquiries
California Labor Code Section 432.7
California Penal Code Section 13203
California Code of Regulations Section 11017
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.