Cal-Peculiarities: How California Employment Law is Different 2022 Edition

68 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com San Francisco bars covered employers from considering convictions that are more than seven years old (measured from the date of sentencing) and infractions. The Board further amended the Ordinance to add a new category of “off limits” information: convictions that arose out of conduct that has since been decriminalized. 4.2.3 Los Angeles ordinance limiting inquiries into criminal history Under the Fair Chance Initiative for Hiring Ordinance, employers with ten or more employees in the City of Los Angeles may not procure a background screen for employment purposes or even ask about criminal history until making a conditional offer of employment, contingent only on the results of the background screen . 21 The LA Bureau of Contract Administration has an Individualized Assessment and Reassessment Form that employers should complete in making a preliminary decision to reject an applicant based on criminal history. The form addresses both individualized assessment and reassessment. Most of the form reflects an initial individualized assessment, to deliver with the pre-adverse action notice and any federal or state disclosures, such as the summary of rights, and a copy of the consumer report. If applicants provide additional information about their criminal record after receiving the pre-adverse package, the employer must complete the reassessment portion of the form and provide it with the final adverse action notice . 22 4.3 Polygraph Tests California employers must not require, as a condition of employment, an applicant or employee to take a polygraph, lie-detector test, or “similar” test. Employers may request a person to take such a test, but only after first advising the person, in writing at the time of the test, that the employer cannot require the test . 23 4.4 HIV Testing HIV test results cannot be used to determine insurability or suitability for employment . 24 4.5 Genetic Testing California employers must not, directly or indirectly, subject applicants or employees to tests for the presence of a genetic characteristic . 25 4.6 Tape Recording and Videotaping 4.6.1 Confidential communications It is a crime for a California employer or employee to surreptitiously tape-record confidential communications . 26 Violators are liable for civil penalties in amounts of up to $5,000 per violation, or three times any actual damages, whichever is greater . 27 T he recording may not be used as evidence, except to prove a violation of the statute . 28 4.6.2 Restrooms, locker rooms, changing rooms California employers must not use or cause to be made any video- or audio-taping of employees in a restroom, locker room, or any room that the employer has designated for changing clothes, unless authorized by court orde r. 29 4.6.3 Secret videotaping in open areas The California Supreme Court has held that employees have the right to privacy, even in an open workplace, against intrusions by members of the general publi c. 30 T he California Supreme Court in one case held that employees have reasonable expectations of privacy against their employer, with respect to their activities in a