Employee Rights Update: Job Application Inquiries and Arbitration Agreements

Permitted inquiries in an employment application:
BMW recently had to settle with the U.S. Equal Employment Opportunity Commission for its alleged illegal criminal background checks on African-American job applicants.  The main issue alleged was that the overly-broad inquiries into the applicants’ past created the unlawful “disparate impact” discrimination against a racial or ethnic group.

In California, there is established law about what employers may inquire about during job applications before making an employment decision.  California’s Labor Code 432.7 prohibits employers from asking job applicants (or even existing employees) about arrests that did not lead to convictions.  Specifically, the law ensures that applicants or employees are not faulted for arrests that did not result in guilt or for a societal historical pattern that discriminates against certain racial or ethnics groups that have been disproportionately subject to a higher number of arrests without conviction.  Similarly, Labor Code 432.8 restricts employers from asking applicants about marijuana offenses that are more than two years old.

Contracts Against Public Policy: Is signing the Arbitration Agreement during your job orientation a part of the past?
On September 3, after passing both the California State Senate and Assembly, Bill AB-465 was presented to the Governor for signature.  The Bill will undoubtedly be fiercely opposed by employers, and if signed into law, it will ensure that certain employment rights are not waived during the job application process.  Currently, employees routinely sign Arbitration Agreements during their on-boarding process without being given the opportunity to contest the giving up of an essential labor right to bring an employment discrimination or retaliation to court.  Instead, by signing the Arbitration Agreement, the employee may also waive the right to take labor violations to the Labor Commissioner and instead must submit all claims to the employer’s arbitrator. See the following blogs for related labor code violation scenarios.

There are several problems that are inherent in the way that Arbitration Agreements are implemented, and this Bill aims to alleviate some of these problems.  Since the employer is the entity that often obtains the arbitrator, there is the underlying bias that may affect the arbitrator’s judgment.  It is also a flawed process where the employee essentially signs away his or her right often without understanding the agreement (even attorneys fight over the complex and ambiguous language) or not even reviewing the Arbitration Agreement which is routinely tucked away in an employee manual/handbook or buried in a pile of paperwork that the employee faces time-pressures to “get through” and sign.  We will monitor the status of this Bill which will undoubtedly lessen the number of blindly signed contracts against public policy such as the Arbitration Agreement.

If you believe that you suffered an employment law matter related to your employee rights or know of possible discrimination or retaliation by your employer during the application or onboarding process, prompt action to preserve your rights is vital.  Contact the experienced employment law attorneys at Stephen Danz & Associates for a free consultation to discuss your circumstances and legal options.