Pre-Employment Drug Tests, Credit Checks and Criminal Checks: Can CA Employers Require Them?

Pre-Employment Drug Tests, Credit Checks and Criminal Checks: Can CA Employers Require Them?

If you’re applying for a job in California, you need to know that drug testing, credit checks and criminal background checks are all covered under state employment laws – and whether employers are allowed to require them depends on several factors. This guide explains. 

In the state of California, there are several laws that govern hiring job applicants. Many of the laws relate to things like discrimination – but some also relate to drug tests, credit checks and criminal history checks.

Related: Legal rights to sue an employer in California 

Pre-Employment Drug Tests

In California, employers are allowed to drug test job applicants. Employers can make passing a pre-employment drug screening mandatory and refuse to hire someone who won’t take a test or who doesn’t pass a test. The test can even include marijuana, which is legal for recreational use.

However, there are two catches: One is that employers must give notice to all current and prospective employees before a drug test. The other is that the employer must require tests for all applicants for the position. For example, if you and three other people are applying for a job, the employer must require all four of you to submit to a drug test. The employer can’t single one of you out but not the others (or exempt one of you, for that matter). 

Related: What is unlawful discrimination in California?

Pre-Employment Credit Checks

Employers can perform credit checks on prospective employees, but only for certain positions. Those positions must be jobs that are sensitive in nature or those that involve money – essentially, they’re jobs where employees could be swayed by bribes or tempted to steal money to make up for cash they don’t have. Some job positions that may require a credit check include:

  • Virtually any position in the military
  • Accounting
  • Financial planning
  • Prison and jail workers
  • Law enforcement
  • Border Patrol officers
  • Government jobs
  • Casino jobs
  • Bank jobs

The employer must provide applicants for those positions with a notice stating that it will perform a credit check. If you’d rather not have your credit report examined – such as when you have a less-than-stellar credit score – you can decline the credit check, but be warned that the employer will have the legal right to not hire you based on your refusal.  

Note: If the employer decides not to hire you based on the information in your credit report, it must notify you.

Related: The ABC Test for employees and independent contractors

Pre-Employment Criminal Background Checks

Employers in California are allowed to run background checks to look at a person’s criminal history before extending an offer of employment. However, the background check must be job-related and must be necessary for an employer to run the business. For example, any job in the military, a financial institution, or one that involves caring for children or the elderly may require a criminal history check. Likewise, jobs involving the criminal justice system (like prison guards), security or money-handling may also require criminal history checks. 

Employers aren’t allowed to consider some types of information that comes back on a background check, though, such as:

  • Arrests that never resulted in a conviction
  • Arrests, detentions or court dispositions that occurred when a person was under the jurisdiction of a juvenile court
  • Non-felony convictions for marijuana possession that are more than 2 years old
  • Participation in a pre-trial or post-trial diversion program
  • Sealed, expunged or eliminated convictions

There’s one more thing: Most California employers cannot include a question on a job application that asks about your criminal conviction history. The California Fair Employment and Housing Act prohibits employers with five or more employees from including this question – and it prohibits these employers from asking about or considering your criminal history until they’ve given you a conditional job offer.

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