The California Employment Law Guide

Background checks are subject to the federal Fair Credit Reporting Act. Employers who run background checks should ensure they’re following the requirements of the Fair Credit Reporting Act.

California requires that employers conduct background checks on those working at facilities that provide day care for children, residential care for the elderly, or community care, as well as those working for a transportation network company.

Employers may not obtain a credit report on an applicant or employee, except for in certain circumstances.

It is illegal for any employer with five or more employees to include on any application for employment any question that asks about an applicant’s conviction history. Additionally, it is illegal to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment. It is also illegal to consider, distribute, or disseminate information related to arrests, diversions, and convictions.

An employer who ultimately acquires an applicant’s criminal history and intends to deny them the job must conduct an individual assessment that should determine whether the applicant’s conviction history has a direct and adverse relationships with specific duties of the job as well as the following: the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and completion of the sentence; and the nature of the job.

If the employer makes a preliminary decision that the applicant’s conviction history disqualifies them from the job, they must notify the applicant in writing and allow them five days to respond. The notification must contain the following: Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer. A copy of the conviction history report, if any. An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation must inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

Whether employers may test their applicants or employees for drugs or alcohol is determined on a case-by-case basis.

If using drug or alcohol tests, we recommend following these practices: only use drug or alcohol tests for applicants if they are job related and consistent with business necessity, use a drug or alcohol test for applicants only after making a job offer and before their first day of work, screen all applicants for the same position, only use drug or alcohol tests for employees based on an individualized suspicion of use, if the employee is in a safety-sensitive position, or if testing is required by federal law, and use a certified laboratory or a licensed physician to conduct the drug test.

COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.” California’s mini-COBRA allows employees to continue their coverage for up to 36 months. We recommend that employers inform an employee of their COBRA rights as soon as a triggering event occurs.

Employers may not discharge, discriminate, or retaliate against an employee for the following: because the employee reported what they reasonably believe is a violation of law to a manager, supervisor, or another employee who can investigate the violation, because the employee reported a fraudulent claim or other record to a governmental agency, because the employee filed a complaint under the Fair Employment and Housing Act (FEHA) or participated in a FEHA proceeding, or because the employee filed a complaint or participated in a proceeding regarding workplace safety. In addition, employers may not have a policy that prevents an employee from reporting a violation of the law.

A worker may be classified as an independent contractor only if all of the following elements are satisfied:

A. The person if free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

B. The person performs work that is outside the usual course of the hiring entity’s business.

C. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The Reporting Time Pay Law requires employers to pay employees “reporting time” pay when an employee reports for work at a scheduled time but is not put to work or is given less than half of a usual shift.

The “Employer Use of Social Media law” restricts California employers from requesting employees to provide their password information to access their social media accounts.

Employers are prohibited from requiring or requesting an employee or job applicant to disclose his or her social media username or password, to access his or her personal social media in the presence of the employer, or to divulge any personal social media information.

The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand for access to the employee’s personal social media.

Workers who earn the minimum wage or close to it are entitled to additional pay known as a “split shift premium” when their schedule includes a split shift. A split shift is a work schedule that is interrupted by non-paid and non-working time periods as required by the employer. Breaks longer than an hour likely will be seen as a split shift. If an employee requests the break for their own convenience, that does not create a split shift.

Employees who make the minimum wage are entitled to one hour of pay for a split shift. Employees who are paid more than minimum wage may be due a split shift premium, but the amount they make over minimum wage will count toward the premium.

Employers may not require employees to work more than six days in a workweek, unless the nature of the employment reasonably requires doing so. If working more than six days in a workweek is reasonably required, employees must be guaranteed at least the equivalent of one in seven workdays off during the same calendar month.

Employers may not make any audio or video recordings in a location where an employee would have a reasonable expectation of privacy (e.g., restroom, locker room, or other room designated for employees to change clothes). As a best practice, employers who intend to make any kind of audio or video recording should make employees aware of this practice in writing upon hire.

With respect to telephonic recording, California requires the consent of all partiesbeing recorded.

The California Constitution also limits an employer’s right to conduct workplace inspections and searches. Employers who intend to conduct searches in the workplace, or wish to reserve their right to do so, should ensure that employees have written notice of the possibility of a search or inspection, and should indicate what might be searched (e.g., desk, locker, purse). California has strong privacy protections which should be weighed against an employer’s legitimate business needs in conducting a search or inspection.

California is an “all parties” consent state, meaning every person on a phone call must be aware that they are being monitored or recorded and have consented by placing or continuing the phone call. This means employers may monitor or record phone calls between their own employees only if each employee has been given notice that phone calls may be monitored or recorded. However, phone calls placed by employees to outside parties may not be monitored or recorded unless the outside party has also consented.

The state of California currently requires mandatory sexual harassment and abusive conduct prevention training for supervisors working for employers with 50 or more employees. California-based supervisors must be trained every two years. New supervisors must be trained within six months of assuming the position.

By January 1, 2021, all employees working for employers with five or more employees will need to be trained. Supervisors must receive two hours of training once every two years, while non-supervisory employees must receive one hour of training once every two years.

California law requires every employer to make accommodations for lactating employees, including providing time and space to express breast milk during the workday. The location provided must be clean, safe and free of hazards, have a place to sit and a surface to place personal items, have access to electricity or charging devices, and must not be a bathroom.

The employer must also provide access to a sink with running water and suitable refrigeration close to the employee’s workspace.

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