Contrary to popular belief, job seekers several legal rights before an employer formally hires them. Under California and federal law, no employer or company can be involved in discrimination during the hiring process. This means that no employer can use details such as race, race, religion, gender, or nationality to select candidates or make job decisions.
In addition, employers cannot act improperly during the interview process by breaching people’s civil rights or subjecting them to unlawful procedures. There are several legal rules relating to workplace testing, background checks, and legal interview questions that an employer may ask.
Understanding these rules can be important to learning your rights as a job applicant, and crucially, knowing when they have been violated. Employers are legally required to comply with this law, and if they do not, they may be subject to legal action.
As such, before applying for your next job, read the following information to learn more about your legal rights during the hiring process.
Illegal Employer Interview Questions
The first thing you should know about the interview process in California is there are certain questions employers are not allowed to ask. As an experienced California employment attorney will explain, these questions can be discriminatory in nature and often lead to bias that unfairly affects some people.
The California Fair Employment and Housing Act (FEHA) specifies that certain characteristics are protected under the law. These characteristics, which include a person’s age, medical history, national origin, or race, are regarded as “protected characteristics”. They are protected because these characteristics can often form the basis of unlawful discrimination that unfairly deprives affected people of work opportunities.
Most of these questions are related to the personal life of the claimant candidate and should not be asked in any case. As you will soon see, these questions rarely have anything to do with the actual requirements of a job, and as such, employers have no business asking them in the first place.
According to federal and California law, employers are prohibited from asking questions about the following protected characteristics on an employment application:
- Marital status
- Race, nationality, or ethnicity
- Candidate age (unless the employer needs to hire a worker over the age of 18)
- Sexual orientation
- Religious beliefs
- Mental or physical disabilities
- Genetic information
- History of alcohol and drug use
- Citizenship status
As a candidate, it is advisable to memorize this list. If a prospective employer asks any of the questions noted above (or similar questions) during the interview or hiring process, you may legally refuse to answer. An employer cannot use your refusal to answer as a sole ground for denying you an employment opportunity.
However, you should keep in mind that there are circumstances where employers may require information about these characteristics. When can they be allowed to ask about these characteristics and is there a legal way to ask?
When can employers ask about protected characteristics?
Certain interview questions are necessary for a job interview, even if they touch on characteristics that are protected under the law. For instance, in certain jobs, an employer may legitimately want to learn if a candidate has a disability because the job is physically demanding. In this scenario, the question is legally allowed, and you should inform the employer of any physical disability you may have that will require alternate accommodations for fulfilling your job duties.
Circumstances such as these are covered where the question relates to characteristics that are important to carrying out the job duties. In another example, an employer cannot simply ask where you live. If you live in a low-income area or a place associated with a specific demography, this question can introduce unconscious bias in the hiring process. However, an employer may legitimately want to learn if you will have no problem getting to work on time daily.
In these circumstances, employers may avoid legal liability by directly asking exactly what they want to know.
Can an employer ask about pay or compensation history?
Apart from questions about protected characteristics, there are other questions that an employer cannot ask. These include asking a job applicant about their pay or compensation history.
Under the California Equal Pay Act and the California Fair Pay Act, it is illegal for employers to use pay history as a basis for employment decisions. An employer cannot consider pay history as a factor in deciding what to pay an employee, neither can they base such decision on pay history.
The equal pay laws were created to close the pay gap between people of different sexes, nationality, or race, which is often perpetuated due to unreasonable bias. Asking about salary history can reinforce the wage gap because employers naturally do not want to pay you much higher than you have been earning.
While an employer cannot ask about pay history, you may decide to proffer this information voluntarily. This may be the case where you believe giving such information can boost your chances of securing higher pay. In such cases, an employer can consider such pay information and even base their decision partially or wholly on the information.
Can an employer ask about past conviction?
Under California’s “Ban the Box” law, it is illegal to ask job applicants about their criminal record or past conviction history. The law, which applies to employers with 5 or more employees, prohibits asking these questions in an oral interview or requiring applicants to check a box if they have a criminal record.
The purpose of this law is to ensure people have a fair chance to secure good employment opportunities. It allows applicants to be considered fairly based on their qualifications, without the fact of their criminal record being in the way.
The law also applies to arrests that did not end with conviction, participation in a pre-or post-trial diversion program, and convictions that were expunged, sealed, or dismissed.
However, there are certain situations and jobs that the law will not apply to. These include:
- Jobs for which a state or local agency is legally bound to conduct a criminal background check;
- Jobs with a criminal justice agency;
- A job as a Farm Labor Contractor; and
- Any job where federal, state, or local law requires criminal background checks or restricts the employment opportunity based on criminal history.
Are there job qualifications that are illegal?
In addition to disallowing illegal interview questions, California and federal law make it illegal for employers to require certain job qualifications. For example, requiring all job candidates to only be from a certain nationality, or demanding that they be fluent in a particular language.
These requirements may have the effect of unfairly marginalizing or excluding an entire group of protected individuals. If you are overlooked for a hiring opportunity based on these qualifications, you may sue and an employer may be required to defend their decision.
In this situation, the employer may be asked to show that the occupational qualification in question is “bona fide” or legitimate, considering the job duties involved. Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158]. To show this, an employer will have to prove that:
- The job requirement or qualification “was reasonably necessary” for the job;
- There was a reasonable basis for believing that those excluded would be unable to properly do the job;
- It would be impossible or difficult to individually consider or test each applicant’s ability to do the job; and
- It would be impossible to rearrange the job duties to avoid requiring the job qualification. California Civil Jury Instructions CACI 2501.
If the employer is unable to show all these factors in explaining why the job qualification is necessary, they may be liable.
Hiring Process of Candidate
Typically, an employer has to complete different tasks before allowing an employee to start work officially. Some of these are:
- Purchase of a Federal Employer Identification Number from a prospective employee
- Registering with the State Department Job to establish unemployment compensation tax for the employee
- Arranging an employee’s pay system to withhold tax
- Obtaining workers’ compensation insurance
- Formulating a Disease and Prevention Plan for the Occupational Safety and Health Administration (OSHA)
- Posting employment policies and notices in an easily observable area (required by the Department of Labor)
- Helping register new employees for employee benefits
- Reporting to the IRS on unemployment tax
Moreover, during the hiring process, employers must refrain from making promises to a prospective or new employee, since any false statement or false promise may result in a violation of the “contractual agreement” provided for by law. For example, the assurance that stock options are worth a certain amount of money for the duration of the employee’s tenure or that the employee’s wages will go up significantly next year, which will result in a contractual agreement.
Therefore, if these promises are not kept, the employer can be informed that he has breached the contract and will be responsible for any damage caused to the employee based on the promise of the employer.
Contact a lawyer for help
Overall, employment laws related to the hiring process exist to protect new employees and candidates from exploitation or abuse by potential employers. Without these rules, some employers would be involved in dishonesty and discrimination. Whether you are an employee or an employer, you need to understand your legal rights and what is expected of you during the hiring process.
If you are an employer and have any questions about your legal rights during the hiring process or if you are an applicant who believes that you have been discriminated against during the hiring process, do not hesitate to contact Eldessouky Law today for a free consultation.