Pre-Hiring Obligations What Employers Should Know Before the First Day By Scali Rasmussen California employers are used to being extra careful with employee-related actions — policies are detailed, managers are trained, and processes are designed to stay compliant. But when it comes to pre-hiring, especially in fast-paced industries like dealerships, that same level of care can fall by the wayside. Here’s a rundown of recent legal updates that affect pre-employment practices — and how to stay on the right side of the law. JOB POSTINGS 1. Pay Scale Disclosure: Since Jan. 1, 2023, California employers with 15 or more employees must include pay scale information in job postings. No links or references to separate documents — this information needs to be in the posting itself. Pay scale means the salary or hourly wage range you reasonably expect to pay for the position. It doesn’t include bonuses, tips or other benefits. If the role involves commission or piece-rate wages, you need to disclose that too. And while there’s no strict rule on how broad the range can be, an overly wide range could raise eyebrows and might not be seen as meaningful. Keep it realistic based on the position, expected experience level and market conditions. 2. Driver’s License Requirements: Employers can no longer require a driver’s license in job postings unless driving is an essential job duty that can’t be done another way. This change helps non-drivers who rely on rideshare services, public transportation or biking. If driving is truly necessary for the job — like for technicians, valets or shuttle drivers — go ahead and include it. But for other roles, you’ll want to remove any mention of a driver’s license. 3. No “Clean Record” Language: Under the Fair Chance Act, you can’t include statements like “No Felons” or “Must Have a Clean Record” in job postings or applications. APPLICATION AND INTERVIEW PROCESS: WHAT NOT TO ASK 1. Salary History: It’s a no-go to ask about an applicant’s salary history — whether in person, on the application or through a recruiter. You also can’t use salary history to decide whether to offer them a job or what salary to offer. What you can ask is their salary expectations for the role. If they share their salary history on their own, you’re allowed to consider it, but you still can’t use it to justify pay differences between employees based on gender, race or ethnicity. 2. New Protected Characteristics: It’s always been illegal to discriminate based on protected characteristics, but recent updates added a few more to the list: reproductive decision-making, off-duty cannabis use and any combination of two or more protected characteristics. Watch out for innocent-sounding questions during interviews. Asking about family responsibilities or where someone was born can cross into areas like marital status or national origin. Instead of asking about childcare coverage, ask if they’ll be able to stick to the work schedule. Also, no questions about conviction history until after you’ve made a conditional job offer. 3. Cannabis Use and Drug Testing: Employers can no longer take action against an applicant who tests positive for non-psychoactive cannabis metabolites — these just show past cannabis use, not current impairment. However, if a scientifically valid test shows psychoactive THC (the stuff that indicates recent use), you can take action. Since those tests aren’t as common, many employers have removed cannabis from their drug screens entirely. If you want to keep testing for cannabis, check with your provider for updated options. CRIMINAL BACKGROUND CHECKS: THE FAIR CHANCE ACT Since 2018, employers with five or more employees can’t ask about conviction history before making a job offer. New regulations clarify what you can consider and how to handle it. When you’re reviewing an applicant’s criminal history, you must conduct an individualized assessment to decide if their conviction directly affects their ability to do the job. This assessment needs to be thoughtful and evidence-based, considering the nature and seriousness of the offense, how much time has passed since the offense or completion of the sentence and the specific duties of the job. If the applicant wants to provide evidence of rehabilitation, you need to consider it. This might include participation in work or education programs during incarceration; stable employment history since the conviction; volunteer work or community engagement; and other mitigating factors like trauma, disability or duress. If the applicant disputes the conviction history or says they’re taking steps to clear it up, you must give them time to respond before making a final decision. Be sure your written notices follow the timing and content requirements under the Fair Chance Act. Always get expert guidance before rescinding a job offer based on criminal history. Also, remember to give a written conditional job offer before conducting background checks or asking about convictions. 18 SAN DIEGO DEALER
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