28 Apr Guidelines for California Employers
California Employers have restrictions as to how they may use potential employee criminal record information. Employers may not ask or consider non-conviction matters except pending matters or post–trial diversion programs. This includes a Deferred sentence or Adjudication withheld.
California Labor Code §432.7(a) regarding pending matters
California Labor Code §432.2(a) regarding participation in any pretrial or
post-trial diversion programs the diversion programs.
New laws relating to Marijuana drug convictions have revised how California employers handle information relating to prior convictions. Employers may not ask or consider certain convictions that are more than 2 years old that involve 1 oz. of Marijuana (28.5 grams).
California Labor Code §432.8; Health and Safety Code §11357
As of 01/01/2012, California Employers may not use consumer credit reports for employment purposes unless candidate is to be employed in certain positions. Consumers must be informed on authorization and consent form. Exceptions include Managerial or executive positions, Employees of CA Dept Of Justice and positions in Financial Institutions. Employee has access to banks, credit card information, SSN and DOB of persons, bank signature authority, access to more than $10,000 cash for employer, client or customer, authority to transfer funds on behalf of employer.
Labor Code §1024.5. The act references the employer to 8 California Code Regulations 11040 for the definition of a managerial position relating to standard wage, hour classifications of executive, administrative and professional positions,
Positions with any financial institution subject to 15 U.S.C. §§6801-6809 [Disclosure of Non-Public Personal Information] either directly or indirectly through other federal or state statutes or regulations.
Sex Offender Information
California Employers have restrictions as to how they may use potential employee Sex offender information. Employers may not ask or consider such information unless the employer has people “at risk”.
Penal Code 290.4(d) governs this restriction. The statute is an attempt to prohibit blanket disqualifications of individuals on a sex offender list. However, this information can be reported under freedom of speech, Mendoza v. ADP Screening, 182 Cal. App. 4th 1644 (2010).
Social Media Usernames and Passwords Restrictions.
California Employers have restrictions as to how they may use potential employee information found on Social Media. An employer shall not require an applicant to disclose their username or password for the purposes of accessing personal social media. There are exceptions relevant to violations of laws, regulations or investigations regarding allegations of misconduct.
Act HB 1844
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