Here are five considerations that should be on the top of every employer’s mind in California during the hiring process in 2024:
1. Does the manager posting job ads understand which pay transparency disclosures are required?
Since January 1, 2023, employers with 15 or more employees are required to include the pay scale for the position in any job posting. SB 1162 amends Labor Code section 432.3 to add this obligation, among other items. As a reminder, Labor Code section 432.3, effective since January 1, 2018, prohibits California employers from asking applicants about prior salary history. Section 432.3 already required employers to provide applicants a pay scale “upon reasonable request.” It defines “pay scale” as “the salary or hourly wage range that the employer reasonably expects to pay for the position.”
2. Will the applicant commit the “unforgivable sin” and how can an employer find this out?
Gary Vaynerchuk explains that being able to put in long hours is not a skill that he looks for in every employee. The “unforgivable sin” for Vaynerchuk is if employees cannot get along with co-workers, are disrespectful, selfish, or create conflict. How can an employer find out if an applicant is not a team player? Seeing how the applicant treats the receptionist upon arriving for the interview and how they treat the waiter at the lunch meeting can be key indicators. Also, asking around with colleagues and your network about people can surprisingly lead to great information about applicants. For example, it amazes me how many attorneys know of other attorneys in Los Angeles and how important one’s reputation is even in a large legal community like Los Angeles.
3. While legal, I’m not a fan of following up with references provided by applicant.
Is it a good practice to follow-up with the applicant’s references provided? While many employers swear by this practice, I’m not a fan. I just don’t see how an applicant would be so naive to provide a reference that would not be positive for them. Alternatively a Google search of the applicant can provide some great unfiltered information. I can hear attorneys and HR professionals groaning already about potential legal issues with conducting a basic Internet search of an applicant’s background. Generally speaking, employers are free to Google an applicant.
4. Does the employer understand obligations when conducting non-criminal background checks?
When conducting a formal background check (i.e., not a Google search, but paying for a background check) on applicants and employees, employers need to take time to review the applicable state and federal laws that apply to background checks. LinkedIn was sued previously for violation of the federal Fair Credit Reporting Act (FCRA) for certain background reports it generated for users of the site. In addition, under California law, the Investigative Consumer Reporting Agencies Act and the Consumer Credit Reporting Agencies Act could apply to background checks in the employment context. These laws are very complex, and employers should enter this area with the knowledge of their obligations before conducting background checks.
5. Does the employer understand state and local criminal history background check prohibitions?
Since January 1, 2018 California employers cannot ask an applicant for employment to disclose information about criminal convictions. The law (added as Section 12952 to the Government Code) applies to employers with 5 or more employees. Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check. In addition, local governments, such as Los Angeles and San Francisco have implemented their own prohibitions on criminal history checks, and employers must also comply with these local requirements. Don’t forget about California’s prohibition on inquiring about applicant’s prior salary history and inquires about the applicant’s prior use of marijuana as well.