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

74 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com The first ICRAA appellate case, decided in 2005, involved an employer who had fired the plaintiff when he confessed that he had a felony conviction. The employer induced that confession by interrogating the plaintiff after obtaining an internet copy of a judicial decision mentioning his felony . 88 E ight business days after the interrogation, the employer gave the plaintiff the internet copy. The plaintiff then sued for untimely disclosure, seeking the minimum $10,000 penalty for an ICRAA violation. The Court of Appeal made two holdings of interest: (1) the employer could not avoid ICRAA disclosure requirements by arguing that its dismissal of the plaintiff resulted from his admission to a felony conviction instead of the employer’s receipt of the Internet report; the Court of Appeal aggressively read the ICRAA to say that the employer must disclose a copy of the public record if an adverse action was taken under circumstances in which the record was obtained and (2) no specific deadline applies to the required disclosure; rather, the employer must furnish a copy “of any public record uncovered in a background check within a reasonable time after an investigation concludes. ” 89 H ere, the Court of Appeal held, as a matter of law, that eight business days following the plaintiff’s interrogation was a reasonable time in which to furnish a copy of the relevant documents, especially since the employer’s due diligence in asking the plaintiff about his criminal record served to verify that the background “information was accurate and not the result of identity theft or otherwise erroneous. ” 90 The employer must also provide a copy of all public records obtained even if no adverse action occurs, upon “completion” of the investigation, unless the individual has checked a box, on a written form, to waive the right to receive a copy of the public record s. 91 Criminal history information. Litigants have disputed whether criminal history information is “character” information governed by ICRAA or “creditworthiness” information governed by CCRAA. A California federal district court held, in 2012, that ICRAA is unconstitutionally vague as applied to background reports containing criminal history information. The federal court, reviewing the two statutes and their legislative history, concluded that an item of information can be subject to either ICRAA or CCRAA, but not both. The criminal history information at issue in the case pertained to both the plaintiff’s character and creditworthiness. The federal court held that because there was no rational basis to decide that the information should be governed by one statute versus the other, ICRAA was unconstitutionally vague in that situation and so the federal court dismissed the ICRAA claim . 92 B ut the California Supreme Court has since held that ICRAA is not unconstitutionally vague and that employers can comply with both statutes simultaneousl y. 93 4.12 Psychological Tests California prohibits pre-employment or employment-related psychological tests except in extremely limited circumstances . 94 California applicants have successfully challenged, as an unlawful invasion of privacy, psychological tests (such as the MMPI—the Minnesota Multiphasic Personality Inventory) that require them to answer questions about their religious beliefs and sexual orientation, even though the test answers were used by only the professional administrators of the test and not by the employer itsel f. 95 Pre-employment psychological examinations are forbidden just as pre-employment medical examinations are (see § 6.3.2). 4.13 Fingerprinting Absent an exception, California employers must not fingerprint employees to provide information to a third person who could use the information against the employee . 96