What You Need to Know About Adverse Employment Action in California

If you are an employee in California, your employer is legally obligated to provide you with a healthy, safe workplace free of discrimination and similar hazards. 

Employees who believe they have been a victim of discrimination have the right to take action against the employer. Similarly, though, employers have rights surrounding employment termination and filing adverse action against an employee.

Here’s what you need to know.

What Qualifies as an Adverse Employment Action in California?

In California, adverse action takes many forms, but some of the most common include the following:

• Terminating employment
• Removing an employee from supervisory responsibilities
• Threatening employees with unfavorable work reassignments or lower wages
• Threatening an employee or a member of the employee’s family with immigration action such as deportation
• Being overly analyzing or scrutinizing of an employee’s work 
• Belittling an employee in the media

Some of these things may be deemed unlawful workplace retaliation. One of the things a company cannot do is take action against an applicant, which interrupts their rights or is discriminatory, specifically after the results of a pre-employment background check arrive. 

To comply with California requirements, an employer who decides not to hire a candidate based on information contained in a background check must first conduct an individualized assessment.

The goal of the individualized assessment is to determine if the information in question is relevant to the job the company is hiring for. 

This is where much of the legislation lies – it may be lawful to use the information from a background check in some situations, but only if that information is directly relevant to the job the company is hiring for.

Once the employer has completed the individualized evaluation and determined that the information is relevant to the job, they must provide the candidate with a Pre-Adverse Action Notice.

• The Pre-Adverse Action Notice must identify the information on the report that is being used to make the decision and include a copy of the completed background check and a copy of the federally required “Summary of rights under the FCRA.”
• The notice must inform the candidate that they have five business days to make an initial response disputing the information contained in the report and to provide the employer with evidence of rehabilitation or mitigating circumstances. 
• The candidate then has an additional five business days to provide their response to the employer.
• If the candidate does provide additional information within the timeframe allotted, the employer must consider the new information before making a final decision.
• If the employer has still decided not to hire the candidate based on the information contained in their background check after conducting an individualized assessment and considering any additional information provided to the employer by the candidate, the employer must send the candidate an Adverse Action Notice.
• The employer is then required to notify the candidate of the right to file a complaint with the Department of Fair Employment and Housing.

Filing a notice of adverse action is a complex process, and employers must do it right to avoid liability and legal action down the road. 

How iprospectcheck Simplifies Adverse Employment Action for California Employers

If you’re struggling to understand adverse employment action in California, you’re not alone. The process involves many steps and confuses many employers. Additionally, the laws have undergone significant change in recent years, and some employers find it challenging to keep pace. 

While the process may seem awkward and cumbersome, at iprospectcheck, we have tools that make delivery of the required documentation easy and consistent.

Our Pre-Adverse and Adverse Action tools allow you to customize each notice to include relevant information. The notices are then delivered electronically. 

We work hard to make compliance manageable for you at every stage of the screening process. We recommend that you create these notifications for your company with the guidance of expert legal counsel. Together with your legal team, we can help you implement fully compliant solutions. Contact us today to schedule a complimentary consultation.

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.