Privacy Rights

Credit Checks

Do I have to agree to a credit check when applying for a job?

It depends. There is a robust federal law called Fair Credit Reporting Act (FCRA) that establishes strict limits on who can check your credit and under what circumstance. California has a similar law called Investigative Consumer Reporting Agency Act (ICRAA), but ICRAA contains even more restrictions to protect employees and consumers.

The California rule is that an employer or prospective employer shall not use a consumer credit report for employment purposes unless you are applying for these types of jobs:

1. Managerial job
2. Law enforcement
3. Job that involves regular access (other than the routine solicitation and processing of credit card applications in a retail establishment) to: bank or credit card account information; social security number; and date of birth.
4. Job where you would be authorized to transfer money on behalf of the employer and enter into financial contracts on behalf of the employer.
5. Job that involves access to confidential or proprietary information, like trade secret
6. Job that involves regular access to cash totaling $10,000 during the workday.

So, if you are not applying for the above types of jobs but your prospective employer wants to pull your credit report, that should raise a red flag in your mind.

Criminal Records

Is your potential employer asking you about your criminal records? Under California’s law known as a “Ban the Box” law, it is illegal for private and public employers with 5 or more employees to ask about criminal history until a conditional offer is made. California Government Code § 12900.

After making you a conditional offer, an employer can do a criminal history check and ask about your convictions. But they can’t ask about or consider convictions that have been expunged, sealed, dismissed, or statutorily eradicated. They also can’t consider convictions for which you’ve received a Certificate of Rehabilitation or pardon.

During the application process, employers may not ask you about prior arrests that did not lead to convictions. But employers may ask you about arrests that did lead to conviction and arrests for which the applicant is awaiting trial (for example, because the applicant is out on bail or has been released on his or her own recognizance pending trial).

Drug Testing

California employers may require employees to pass a drug test as a condition of employment, provided that no applicant is singled out based on protected characteristics (i.e., race, national origin, disability, etc.).

However, random drug testing is not allowed except for employees in public positions (i.e., police officers, fire fighters, etc.) and jobs where public safety is of concern (i.e., construction and hospital workers, etc.).

But if an employer has a reasonable suspicion that an employee is using drugs, then it may require drug testing as long as that the suspicion is based on objective facts.

What about marijuana use? As you may remember California legalized the recreational use of marijuana in 2016. Since then, the legislature has been slow to amend the Fair Employment and Housing Act (FEHA) accordingly, but finally, FEHA will be amended as of January 1, 2024 to make it unlawful for an employer to discriminate against an applicant or employee for (1) the use of marijuana “off the job and away from the workplace” and (2) for an employer-required drug screening test that finds the person to have nonpsychoactive cannabis metabolites in their system. 

So, starting next year, employers are prohibited from holding test results for non-psychoactive cannabis metabolites against an applicant or employee if all the test reveals is evidence of past marijuana use. But of course, employees can still be disciplined or terminated based on test results that show (1) present impairment and/or (2) the presence of the psychoactive chemical compounds of marijuana.

There are some exemptions under this new law, so if you have any questions, please contact an experienced employment lawyer for advice.

Workplace Searches

Under California law, you have a reasonable expectation of privacy which prevents employers from searching employees wherever and whenever the employer wishes. What is considered reasonable depends on factors like the type of employment, whether there is evidence of misconduct, and the scope of the search.

Of course, employers have more latitude to search your desk, computer, and file cabinets, but you have a greater expectation of privacy with respect to more intrusive searches, including searches of their bodies, clothing, purses/bag packs.

Because of these competing rights, the legality of workplace searches will depend on the facts of each situation. If you believe that you were subjected illegal search at your job, please consult an experienced employment lawyer right away. 

Dress Codes

In general, a dress code in the workplace that imposes reasonable restrictions on employee appearance is legal in California (as long as it is not discriminatory). 

This is because employers have a legitimate business interest in their employees presenting a professional appearance at work, particularly when employees are expected to interact with customers or other third parties. Employers may have a legitimate interest in imposing certain attire restrictions when the attire could present a safety hazard due to the nature of the employee’s work.

However, a dress code is illegal if it imposes an unequal burden on any class of employees, require adherence to gender stereotypes, don’t allow for reasonable religious or medical accommodations, or when the policy is enforced only for certain employees.

For instance, if your employer has a dress code only for women but not for men, that is singling out and discriminating against women. Thus, that dress code is illegal. Further, if a dress code has a disparate impact on certain group of people, that policy may run afoul of California. For example, a ban on certain hair styles, such as Afros, braids, twists, cornrows, and dreadlocks, obviously are targeted for African American individuals and therefore illegal. In fact, a new California law went into effect on January 1, 2020 that protects people in workplaces and K-12 public schools from discrimination based on their natural hair. This new law known as the Crown Act prohibits the enforcement of grooming policies that disproportionately affect people of color, particularly black people.

If you believe that you are being unjustly targeted by your employer with respect to how you look or dress, please consult an experienced employment lawyer as soon as possible.