Did you know that certain inquiries made during the hiring process can violate California law?

There are certain areas of inquiry that an employer cannot lawfully tread upon during the hiring process or use in selecting an employee. These are manifold.

In general, an employer may not ask questions about a job applicant's race, marital status, religion, age, past drug addiction, organizational activities, sexual orientation and citizenship, among many other things. An employer may ask an employee whether (s)he is lawfully able to work in the U.S., but may not ask for proof (documentation) until after a job offer has been extended and accepted. With regard to criminal history, an employer may only ask about the existence of felony convictions. With regard to health and disability, an employer may not ask questions about an applicant's general medical condition. An employer may ask whether the applicant is capable of performing all of the functions of the job.

There are numerous intricacies as to what is an acceptable area of inquiry and what is not. Many of these restrictions remain applicable after an employee is hired, as well. Therefore, when in doubt, consult with an experienced employment attorney before legal exposure arises.

Did you know that certain representations made during the hiring process can diminish an employer's right to terminate employees at will?

California Labor Code §2922 permits the termination of employment, having no specified term, without cause or prior notice. In other words, an employee can quit his/her job, and an employer can terminate an employee, at any time with or without cause or notice. This is called at-will employment. However, contrary representations made by an employer during the hiring process (and thereafter), such as "You will become a permanent employee after the introductory period," "As long as you perform well, you will have a job here," "We're looking for long-term employees," and the like, may begin to tear away at an employee's at-will status.

In order to more clearly retain the ability to terminate an employee at will, employers need to stray away from such representations of long-term or continued employment and consistently implement a clear policy of at-will. This will avoid misunderstandings (a.k.a. lawsuits). Additionally, in order to avoid misrepresentation claims, employers are strongly encouraged not to misrepresent the nature or duration of a job position or the promotional opportunities. All employment applications, offer letters, new hire packages and employee handbooks must contain the proper policies and integration clauses. Employers are advised to retain experienced employment attorneys to draft and/or review these documents.

Employees receiving and relying upon representations of long-term or continued employment should request that they be placed in writing and that the writing specifically indicate that the employee will not be considered an at-will employee and/or will be retained for a specified period of time. In many instances, employers' representations during the hiring process (and sometimes thereafter) contradict written policies, offer letters or other documents provided to employees. In such instances, the employer's written documentation will likely hold water much better than oral representations will in a court of law.

For questions on additional prohibited conduct or advice on other employment matters, feel free to contact the Law Office of Robert D. Coviello or other local experienced employment law firm.

Robert D. Coviello has maintained a private practice in Orange County for over 21 years. His firm accepts cases involving wage & hour, wrongful termination, and all types of unlawful harassment & discrimination. He is a frequent speaker at seminars designed to educate employers and their counsel on employment matters. Recent topics include: Avoiding & Defending Discrimination Charges, Investigating the Sexual Harassment Complaint, and Mis-Classification of Employees. Among other things, Mr. Coviello sits as Chair of the Labor & Employment Law Section of the State and Orange County Bars, is a member of the National Employment Lawyers Association and serves as a Neutral on the Employment Panel of the American Arbitration Association. Perla J. Duvel is an Associate Attorney with Mr. Coviello's firm. She is a member of the Labor & Employment Law Section of the Orange County Bar and has handled a variety of wage & hour, sexual harassment, wrongful termination and employment discrimination claims. Ms. Duvel frequently investigates these matters and has spoken at seminars on the issues of Investigating Employee Sexual Harassment Claims and Conducting Job Interviews without Violating Law.