Posted on October 6, 2017 in Employment Law
Every employee or job seeker has at least one story to tell about a weird, wacky, intrusive, or downright inappropriate question they were asked in a job interview. Many employers don’t seem to know what sort of questions they shouldn’t be asking.
There are certain things that an employer or prospective employer is simply not allowed to ask you in an interview or at your job, because they are deemed to be discriminatory or compromise your right to privacy. Examples include whether you have kids or are married, but this doesn’t mean that all employers realize that such topics are off limits!
If you have found yourself being asked to reveal certain types of personal information about yourself in an interview or at your job that do not directly relate to the job itself and/or that are discriminatory or invade your privacy, you don’t have to answer-and in fact, should refuse to do so.
Because certain questions and topics are off-limits in law, your employer or would-be employer can’t hold refusing to answer such questions against you, or factor this into their decision on whether or not to hire you-but in reality, this type of thing happens on a regular basis in California, and all over the USA.
If your employer has requested inappropriate information, penalized you for refusing to provide it, or has discriminated against you because what was contained in information you agreed to reveal, you may have a case in law.
If you aren’t sure if your employer can ask you certain questions or make you reveal certain information to them, in this article, we will look at some common questions about personal information requests, and where they stand under both Californian and federal laws.
A common misconception among employees and job seekers is that employers are permitted to check your credit score. This is not the case. However, they can check your credit report and because “credit report” is a term often used interchangeably with “credit score,” many employees don’t realize that there is a difference.
Your credit score is a three-digit number that lets lenders determine how good a credit risk you are-which affects how likely they are to offer you a loan or extend you credit. Your credit report, on the other hand, contains rather different information about your lending and financial records, and does not constitute your credit score. While having an employer ask to see this might make you uncomfortable, it is not illegal.
Something else to know is that you have to consent to someone checking your credit report. So while your employer can request your permission to check your credit report and make a decision about you based on what it contains, they cannot check your credit report without your permission, and they cannot check your actual credit score at all.
The Fair Credit Reporting Act or FCRA sets national standards for employee credit report protocols, and investigates and penalizes violations.
Under the remit of the Americans with Disabilities Act, job applicants cannot be asked to reveal their medical records or to answer medical questions, but the employer is allowed to ask if the applicant can perform the job in question, and how.
An employer in San Diego can, however, make a job offer conditional on the applicant answering certain questions about their health and medical record and/or passing a physical, as long as these same conditions are applied equally to all new employees.
When you actually have a job, your employer is normally only allowed to require a medical exam or ask medical questions if they have reason to believe that the existence of a condition or disability will impact upon an employee’s ability to perform their job safely and properly, or to support an employee’s request that accommodations be made for a health problem or disability.
Background checks are also known as “pre-employment inquiries,” and there are certain things that employers are allowed to ask and find out about you as long as they are relevant to the job in question, and your ability to perform it.
Employers and prospective employers in San Diego are not allowed to ask about a person’s race, sex, age, nation of origin or religion, nor require a photograph of the job applicant to be supplied with an application.
The short answer to this is that yes, they can ask. Whether or not you choose to provide it is up to you. However, an employer can usually legally deny you a position if you refuse.
An employer may wish to see your W-2 to confirm if the current salary you claim to earn is true or not, and this is legal. However, an employer cannot use your W-2 as a sneaky way to find out protected personal things about you-such as whether or not you are married, and if you have any dependents.
If you can prove that they are asking to try and circumvent your privacy and find out things like your marital status and whether or not you have kids, this is classed as workplace discrimination.
Currently, employers and interviewers in the State of California are permitted to ask applicants about their previous salary-although many best-practice guides advise against this, because of its implications under the Fair Pay Act as a potential form of gender-specific discrimination against women.
This means that your interviewer can legally ask-although there is currently a state-specific Bill under consideration in California that seeks to outlaw the practice of asking interviewees about their prior salary, so watch this space!
No. Your employer needs to ask for your permission in order to perform a credit check. As per the FCRA, you must provide your employer with written permission before they are able to access your credit report. If your employer goes ahead and checks your credit report without permission from you, then he or she is in violation of the FCRA.
Yes, an employer can check your criminal record. In fact, most employers will carry out criminal background checks when they are hiring for positions at their business. However, a new law was introduced at the start of the year, known as the ban-the-box law in California. This is an amendment to the Fair Housing and Employment Act (FEHA), which is in place in the state. This law means that it is now against the law for both public and private employers with 5+ members of staff to make enquiries concerning criminal history until the application is toward the final stages. The reason for this change in legislation is to make sure that employers consider each person’s suitability for the job first, rather than immediately assessing a person based on their criminal history.
Yes, they are allowed to use your criminal record when determining whether or not to hire you. Nevertheless, when it comes to these types of decisions, your employer must display that their hiring decision was a ‘business necessity.’ Basically, an employer cannot refuse to hire you because of your criminal record without a justified reason for doing so. It needs to be related to the job requirements.
In most states in the U.S., employers are not allowed to use arrest history that has not led to a conviction when determining whether to hire someone or not. If you have been refused a job because of an arrest that you were not charged for, this is against the law. The only time when it is valid to use arrest history is when the following three factors are true: the arrest has happened in the recent past, it is likely that the job candidate committed the crime they were arrested for, and there is a link between the reason the person was arrested and the job position, for example, if you are making an application for a cashier position yet you have recently been arrested for theft.
Yes, it is fully legal or employers to demand drug testing. This is something that private, state, and federal employees can all be subject too. In a lot of industries, this is a necessity. Take federal employees as a prime example. They have a duty to protect health, life, and property, and so it is imperative that they are in the right state of mind, and so it is not hard to see why a drug test may be deemed a necessity. As per the Supreme Court, drug testing is deemed vital to protect the health and safety of other people, even though they recognize that it does infringe on the privacy of an employee, but the necessity outweighs this.
Yes, and a potential employer can also ask you to take a drugs test too. This can be deemed a condition of the employment, and the person hiring does not need to have any reason or cause that you have been taking drugs in order to request a test. However, if an employer does ask you for a drug test, it is vital that they ask everyone in your position, i.e. all job candidates. They cannot merely single you out; yet enable all other applicants to apply without taking a drug test. It is worth noting, however, that in California you can only be asked to take a drug test once you have passed the interview stage and you have received an offer of employment. This offer should be one that essentially states you have been accepted for the role so long as you pass the drug test. The purpose of this role is to ensure that you only have to go through drug testing if you are deemed suitable for the job, and so you won’t have to experience this for each and every interview you apply for.
Alcohol is not considered a drug. However, there are instances whereby employers can test you for alcohol. For example, if you have been involved in an accident and your employer has reason to believe you were under the influence of something, drug or alcohol testing may be required. Nonetheless, there is a very fine line in this regard, as OSHA may fine employers if they deem alcohol and drug testing policies to be the reason why employees are not reporting accidents in the workplace. Therefore, simply demanding a drug or alcohol test without reason whenever something goes wrong in the workplace is not permitted.
No, your employer is not allowed to ask you about your current or previous use of a drug that is lawful. Drinking alcohol is not against the law, and it is also not considered a drug. Therefore, while an employer can ask you whether you drink alcohol, they cannot ask you about the quantity you drink or whether you have participated in an alcohol rehabilitation program such as AA. They can ask about DUIs, though, as this is to do with criminal charges. Also, an employer cannot fire you for alcoholism, as this is considered a disability under FEHA or ADA. Nevertheless, he or she can fire you for using alcohol while at work, as this is against the terms and conditions of your contract. They can also fire you for poor performance or misconduct, which may stem from your alcohol use.
If your employer or prospective employer has asked you a question or requested information from you that the law states they are not permitted to, this may lead to your being unfairly penalized based on their findings, or refusal to comply with their demands.
This means that you might wish to seek legal recourse under the remit of the law-and different laws apply to different types of questions and violations, such as those designed to prevent discrimination, and protect an individual’s right to privacy.