5 Most Common Hiring Mistakes Made By California Employers
|Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Written: March 2009
Mistake No. 1. Discriminatory Job Placement Ads
Both federal law (which applies to employers with15 or more employees) and California law prohibit employers from posting a job ad that in any way references a potential employee's race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, actual or perceived sexual orientation, or age. Ads should refrain from mentioning such things as: "seeking youthful xyz," "college graduate," or " strong male capable of xyz." Could all be interpreted as violating both the federal and California state laws prohibiting age discrimination.
Mistake No. 2. Asking Illegal Questions During The Job Interview
The focus of any job interview should be on the education, skill and experience level of the job applicant and the qualifications needed to perform the job. There are probably many questions you might want to ask a prospective employee, but certain questions can only get you in trouble. Never ask a Job Applicant the following 8 questions:
- How old are you?
- Do you have any children?
- Are you married?
- Are you pregnant?
- Do you have any disabilities?
- What is your ethnicity?
- What is your religious affiliation?
- What is your sexual orientation?
Mistake No. 3. Failing to Give All New Hires an Employee Offer Letter of Employment, or Written Contract
Absent a clearly written offer letter of employment, or contract, stating that an employee's employment is at will, a California court may view these oral or written representations as creating an implied employment contract pursuant to which the employee can only be fired for cause. California employers should make sure all newly hired employees sign an employee offer letter that sets forth: (1) the employee's title and position, (2) the starting salary, or hourly wage; (3) the expected start date; (4) any benefits the employee will be entitled to; and (5) that the employment is at will followed by a clearly written explanation of what that means and how the at will relationship can be altered in the future. The lack of a properly drafted offer letter, a poorly drafted employee contract, and the employer's employee policies each can lead an employee to sue for, and a court to find, wrongful termination.
Mistake No. 4. Performing an Overbroad Background Check or Credit Check
A claim of "negligent hiring" may be brought by an injured employee, if you hire a new employee that you should have known was predisposed to commit a violent act of misconduct. Consequently, the performance of a background check has become somewhat necessary to prevent and defend a claim of "negligent hiring." However, because an employee background check can reveal a wealth of information regarding a job applicant's qualifications, it is necessary to: (1) limit the extent of the background check to factual job related information; (2) have the job applicant sign a consent form that verifies that they have been informed that a reference/background check will be conducted, specified the nature and extent of the background check, and gives the former employer the right to release employment-related information; and (3) make sure that the information gathered is kept confidential. The results of any background check should be kept in a separate file marked confidential and should not be placed in the employee’s personnel file.
If you are contemplating performing a credit check on a prospective new hire, you should know that effective January 1, 2012, California Labor Code section §1024.5 prohibits most California employers from obtaining a consumer credit report on a job applicant and/or employee, except in six (6) very limited circumstances. For more information on this, see our blog post Most California Employers Now Prohibited From Performing Employee Credit Checks. If the employee, or prospective employee, falls within one of the six (6) exemptions allowing the California employer to perform a credit check, the employer must do so in compliance with all federal and state notice and procedural requirements. As to California's notice requirements, effective January 1, 2012 A.B. 22 amends California Civil Code §1785.20.5 to require the employer before obtaining a credit report to provide the prospective employee with advanced written notice identifying the specific basis under Labor Code section 1024.5(a) for use of the report. In addition, the California employer must acquire the prospective employee's prior written authorization. If the employer, after review of the credit report, decides not to hire the job applicant, the employer must then provide the applicant with written notification of: (1) the name, address and telephone number of the company that prepared the credit report; (2) the fact that the employer, and not the company that prepared the report, has decided not to hire the employee; (3) the job applicant, however, still maintains the right to dispute the accuracy, or completeness, of the information; and (4) the job applicant has the right to obtain an additional free credit report from the credit agency upon request within 60 days. Along with the letter described in the prior sentence, the employer must give the applicant a copy of the credit report obtained and a copy of A Summary of Your Rights Under the Fair Credit Reporting Act.
Mistake No. 5. Failing to Fill Out New Hire Forms for the State and the IRS
Every California employer, even if they have only one employee, must register with the California Employment Development Department, complete Form DE-1 (Employer Registration) and for each new hire complete Form DE 34 (Report of New Hire) within 15 days of paying that new hire $100 or more. In addition, every California employer must complete IRS Form 1-9 (Employment Eligibility Verification) and W-4 for each new hire. In the employer will be hiring an independent contractor who will be paid more than $600, the California employer is also required to complete and file Form DE-542 (Report of Independent Contractors).
A large part of our employment law practice consists of counseling employers who seek to comply with new state and federal employment laws, providing human resource training, and providing essential contracts and employee policies to prevent employee lawsuits. To schedule a consultation about preparing an employee offer letter of employment, employee contract, or written employee policies, please call 818-849-5206 or Email Us.
California employment lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and serves individuals and businesses throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.
© 2009 Melissa C. Marsh. All Rights Reserved.