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

76 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com computer programmer was breach of implied covenant of good faith and fair dealing as it was an unwarranted intrusion under California Constitution’s privacy provisions; plaintiff was not a safety employee and no other compelling interests justified the testing). Luck ’s “compelling interest” test for non-safety-related private sector drug testing was disapproved in Hill v. Natl’ Collegiate Athletic Ass’n , 7 Cal. 4th 1, 56-57 (1994). 3 Loder v. City of Glendale , 14 Cal. 4th 846 (1997) (upholding applicant testing as part of generally applicable pre-employment exam, where employer’s “substantial interest” overcame “relatively minor” intrusion on expectation of privacy, but disallowing testing of current employees seeking promotion), cert. denied, 522 U.S. 807 (1997); see generally Hill v. NCAA , 7 Cal. 4th 1 (1994) (privacy rights depend in part on reasonable expectation of privacy, and invasion of privacy can be justified by “countervailing interests” or by consent). See also Pilkington Barnes Hind v. Superior Court , 66 Cal. App. 4th 28 (1998) (upholding suspicionless applicant testing). 4 Lopez v. Pac. Mar. Ass’n , 657 F.3d 762 (9th Cir. 2011) (amended opinion issued on denial of rehearing and petition for rehearing en banc) (policy challenged not on privacy grounds but rather on the theory that “one strike” rule discriminated against former addicts on the basis of disability). 5 San Francisco, CA Municipal Code Pt. II, Police Code, ch. VII, article 33A, §§ 3300A.1-3300A.11 (Prohibition of Employer Interference with Employee Relationships and Activities and Regulations of Employer Drug Testing of Employees). 6 The EEOC tried to nudge federal law in California’s direction law in 2012, in the EEOC’s Enforcement Guidance on Consideration of Arrest and Conviction Records Under Title VII of the Civil Rights Act of 1964. Se e http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm (visited May 26, 2022). The EEOC argued that pre-employment inquiries about arrests not resulting in convictions have had a disparate impact on applicants in protected classifications such as national origin and race, and that use of arrest records “is not job related and consistent with business necessity.” This approach would still leave employers free, of course, to consider the underlying facts that led to the arrest. 7 Lab. Code §§ 432.7. Exceptions exist for certain types of arrests for peace officers and health care employees. See also Gov’t Code § 12952(a)(3) (employers, in checking conviction history on an applicant, generally must not consider or relay information about arrests not followed by conviction, about referrals to pretrial or post-trial diversion program, or about convictions that have been sealed, dismissed, expunged, or statutorily eradicated by law). 8 Lab. Code § 432.7(a)(1). 9 Id . By special exception, community youth athletic programs may request criminal history information from the Department of Justice for both volunteer coaches and hired coach candidates. Pen. Code § 11105.3. 10 Lab. Code § 432.8. 11 Starbucks Corp. v. Superior Court , 168 Cal. App. 4th 1436 (2008) ( Starbucks I ). And the mischief continued. The trial court permitted class counsel to conduct further discovery to find a “suitable” class representative, and ordered Starbucks to review job applications to find former job applicants with prior marijuana convictions to reveal to class counsel, unless the applicants affirmatively opted out to a neutral administrator. In Starbucks Corp. v. Superior Court , 194 Cal. App. 4th 820 (2011) ( Starbucks II ), the Court of Appeal granted a writ of mandate against this discovery, noting that by providing for the disclosure of job applicants with minor marijuana convictions, the lower court ironically was violating the very privacy rights contained in “marijuana reform legislation” that the class action purported to enforce. 12 Garcia-Brower v. Premier Automotive Imports of CA, LLC , 55 Cal. App. 5th 961 (2020). 13 AB 1008, codified in Gov’t Code § 12952, repealing Labor Code § 432.9. Exceptions exist for cases where the law requires a criminal history background check for the position in question. Note that California in some cases requires a criminal background check. Effective 2017, transportation network companies (e.g., Uber, Lyft) must obtain a criminal background report on each participating driver. A transportation network company must not contract with or employ any driver who (i) is registered on the U.S. Department of Justice National Sex Offender Public Website, (ii) has been convicted of any of certain terrorism-related or violent felonies, or (iii) has been convicted, within the last seven years, of any misdemeanor assault or battery, any domestic violence offense, driving under the influence of alcohol or drugs, or any of a specified list of felonies. Public Util. Code § 5445.2. 14 Gov’t Code § 12952(a). Exceptions apply for special jobs. Id. § 12952(d). 15 Gov’t Code § 12952(c)(1)(A). 16 Gov’t Code § 12952(c)(2). 17 Gov’t Code § 12952(c)(5) (employer must inform applicant of any existing procedure employer has for applicant to challenge the decision or request reconsideration, and of the applicant’s right to file a complaint with the DFEH). 18 Lab. Code § 432.7(m). 19 The ordinance would permit a conviction check after a live interview, but under state law the employer must first make a conditional offer of employment. The ordinance applies to positions at which an employee will work at least eight hours a week in San Francisco. There is also an annual reporting requirement. 20 49 S.F. Police Code §§ 4901-4920. 21 Los Angeles, Mun. Code, Art. 9, Ch. 18, § 189 et seq. Under the Los Angeles Fair Chance Initiative for Hiring (Ban the Box). The definition of “employee” extends to those individuals who are working an average of two hours per week within the geographic limits of Los Angeles, even if those two hours are telecommuting from an LA address. Id . § 189.01(I). 22 Se e https://bca.lacity.org/fair-chance ( visited May. 26, 2022). 23 Lab. Code § 432.2. 24 Health & Safety Code § 120980(f) (“Except as [used for insurance risk purposes], the results of an HIV test, as defined in subdivision (c) of Section 120775, that identifies or provides identifying characteristics of the person to whom the test results apply, shall not be used in any instance for the determination of insurability or suitability for employment.”). 25 Gov’t Code § 12940(o).