By Pam Devata and Dana Howells

Complying with the federal Fair Credit Reporting Act (the FCRA) is not easy. Compliance with both the FCRA and California restrictions on credit and background checks is much more challenging. Given California’s extra-strength privacy protections and penchant for workplace regulation, it is not surprising that California has peculiarities when it comes to credit and other background checks.  In Part 1 of a three part blog, we take a dive into credit checks—California style.

California is one of  a growing number of states with laws restricting use of credit history for employment. Effective January 1, 2012, California Labor Code Section 1024.5 generally prohibits the use of credit reports for employment purposes by private sector employers.  If an exception to Section 1024.5 permits an employer to use credit reports, California employers must comply with both the FCRA and the California Consumer Credit Reporting Agencies Act, which are not always congruent. 

Comparing and contrasting the FCRA with the California Consumer Credit Reporting Agencies Act

What FCRA requires—in a nutshell.  Prior to conducting a background check on an applicant or employee through a third party, an employer must:

  • Provide a notice/disclosure to the employee/applicant that the employer will seek a credit report.  The disclosure must be clear, conspicuous, and made in a document consisting solely of the disclosure.  This is a huge area of class action litigation.
  • Supply a copy of  “A Summary of Your Rights Under the Fair Credit Reporting Act.”
  • Obtain written authorization/consent from the applicant/employee. 

Prior to taking adverse employment action against an applicant/employee based, in whole or in part, on a consumer credit report (or investigative consumer report—more about those in Part 2), employers must follow a two-step notification process required by the FCRA:
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By Laura Maechtlen and Kristen Verrastro

During onboarding, it would not be unusual for an employer to ask a new hire to give written authorization for deductions from their final paycheck if the employee does not return employer provided uniforms, tools, or equipment.  It also would not be unusual for employers to ask employees to supply their own equipment and tools, or clothing as a uniform when reporting for work.

In California, however, written authorization executed during the onboarding process will not suffice for reimbursement deductions at the time of termination.  Additionally in California, employers cannot require employees to supply certain clothing, tools, and equipment without reimbursement.

Uniforms

When it comes to uniforms, federal law differs from California law:

Federal law:  Federal law may allow employers to pass the costs of providing or maintaining uniforms to employees, as long as the employee’s pay would not drop below minimum wage in doing so.

California law:  California law requires that employers pay for or reimburse nonexempt employees for all costs associated with uniforms, regardless of the employees’ compensation.

What is a “Uniform”?
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By Laura J. Maechtlen and Chantelle C. Egan

It’s payday!  If the employer uses direct deposit, an employee can conveniently and immediately access wages without going to the bank (or waiting for the check to clear).  For that reason, it might seem that every new employee would want direct deposit.  But, employers must be careful.

By Chantelle Egan and Laura Maechtlen

Drug testing implicates the California right to privacy, which is enshrined in our Constitution.  Therefore, employers must be careful when drug testing is a component of their onboarding process.

The General Rule  

A private employer in California can require a job applicant to pass a pre-employment drug test as

By Laura Maechtlen and Kristen Verrastro

We’ve all been in this situation: you’re trying to get to know someone better, so you ask that person a seemingly innocent question which inadvertently elicits an answer you wish you could have avoided!  If this happens in a social setting it’s unlikely to create a big problem, but

Isn’t it true that nationwide employers can interview and hire employees for their California offices so long as they follow federal hiring laws?  In a nutshell, no way.  Hiring in California presents a host of nuanced, state-specific rules that often add up to “don’ts.” We list a few for you below.

Don’t Oversell

Question

Wouldn’t we like to know if a potential applicant has ever criticized a former employer, or whether their online presence gives evidence of illegal activity or violent, discriminatory or unethical behavior? Or just poor judgment? What if they belong to political groups, like the Tea Party or the ACLU?

What is so wrong with learning