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DFEH-161 Pre-Employment Inquiries

In California, when you are hired for a job, it is at the discretion that the employer is being fair to you as they would be to any other applicant. The California Fair Employment and Housing Act (FEHA) makes it impossible for discrimination to take place in the workplace based on things like race, religion, color, ancestry, physical or mental disabilities, medical conditions, sex, age, and much more. It would actually be unlawful for an employer not to hire somebody based on any of these things.

There are also limitations on what employers are able to ask in regards of requiring examinations. Under FEHA law, it is prohibited for employers to require medical or psychological examinations or asking any applicant if they have a mental or physical disability or medical condition. However, an employer is allowed to ask whether or not there is something that will affect the ability to perform job-related functions when hired. When an employment offer is made, an employer is then allowed to ask for a medical or psychological examination with restrictions.

What other things can an employer ask?

  • Your place of residence
  • That legal age requirements are met
  • Verification of legal right to work in U.S.
  • Languages that the applicant can read, speak, or write
  • Statement by employer of regular days, hours, or shifts to be worked
  • Inquiry that applicant can perform job-related functions
  • Job-related questions about convictions unless sealed
  • Name and address of person to be notified in case of accident or emergency

What things can’t an employer ask?

  • Questions regarding owning or renting
  • Questions that tend to identify applicants over 40
  • Requirements that applicant produce naturalization or alien card prior to employment
  • Questions as to nationality, lineage, ancestry, national origin, or applicant’s spouse
  • Any inquiry into the applicant’s general health, medical condition, or mental/physical disability
  • General questions regarding arrest record
  • Name, address, and relationship of relatives to be notified in case of accident or emergency (DFEH)

What are some other things that may be involved in the hiring process?

  • The employer may obtain a federal employment identification number for each new employee, from the IRS.
  • They must register with their state’s employment department for payment of unemployment compensation taxes for each new employee.
  • They must set up the employee’s pay system to withhold taxes to be paid to the IRS.
  • They must obtain workers’ compensation insurance.
  • They must prepare an illness and Prevention Plan for the Occupational Safety and Health Administration (OSHA).
  • They must post required notices in the workplace as required by the Department of Labor (DOL).
  • They must report federal unemployment tax to IRS.

Employers should never make promises to prospective employees because they will be seen as false statements made under “implied contract” under the law. For instance, an employer should avoid telling an employee that “they will have a job for life” because in some cases, they may choose to let go an employee. The employer can be said to have breached their contract and will be held responsible for damages that have occurred to the employee’s lifestyle due to the fact that they were relying on the promise.

There are certain things that employers should and should not do when they are looking to hire new employees. Have you fallen victim to being asked illegal questions by an employer or having to meet requirements that shouldn’t have been acceptable? Now you can find out more about what you should do if you believe you have a case – call The RAWA Law Group today! We will work with you and let you know your legal rights.

Works Cited

DFEH. Department of Fair Employment & Housing, 2015. Web. Accessed Dec 28, 2015. https://www.dfeh.ca.gov/res/docs/Publications/Brochures/2015/DFEH-161.pdf