Contracts and Applications for Employment under the Labor Code

California’s Labor Code has provisions related to contracts and applications for employment under Article 3 of Chapter 3 of Part 1 of Division 2. Article 3 was enacted in 1937 by Chapter 90.

Section 430 defines “applicant” to mean an applicant for employment. Section 432 states that, if an employee or applicant signs any instrument relating to the obtaining or holding of employment, they must be given a copy of the instrument upon request.

Section 432.2 prohibits an employer from demanding or requiring any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. The prohibition of this section does not apply to the federal government or any agency thereof or the state government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities, and agencies.

Section 432.3 prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer employment to an applicant or what salary to offer an applicant. Also, an employer is prohibited from seeking salary history information, including compensation and benefits, about an applicant for employment. And, an employer is required to provide the pay scale for a position to an applicant applying for employment.

This section applies to all employers, including state and local government employers and the Legislature. Nothing in this section prohibits an applicant from voluntarily and without prompting disclosing salary history information to a prospective employer. Also, nothing in this section prohibits an employer from asking an applicant about the applicant’s salary expectation for the position being applied for.

Section 432.5 prohibits an employer, or agent, manager, superintendent, or officer from requiring any employee or applicant for employment to agree, in writing, to any term or condition which is known by such employer, or agent, manager, superintendent, or officer thereof to be prohibited by law.

Section 432.7 prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.

In addition, an employer is prohibited from seeking from any source or utilizing as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law.

This section defines what is or is not a “conviction” under the law. This section does not prohibit the disclosure of the information authorized for release to a government agency employing a peace officer. If a person violates this section, the applicant may bring an action to recover from that person actual damages or $200, whichever is greater, plus costs, and reasonable attorney’s fees. An intentional violation of this section entitles the applicant to treble actual damages, or $500, whichever is greater, plus costs, and reasonable attorney’s fees.

This section does not prohibit an employer at a health facility from asking an applicant for employment to disclose an arrest for specified offenses. This section defines the terms “a person authorized by law to receive that information,” and “pretrial or posttrial diversion program.” Also defined are the terms “screening,” “prospective concessionaire,” “affiliate,” “associate,” and “control.” This section does not prohibit a public agency, or any officer or official thereof, from denying consent to, or approval of, a prospective concessionaire’s application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest based on the criminal history information of the prospective concessionaire or the affiliates or associates of the prospective concessionaire that show any criminal conviction for offenses involving moral turpitude.

A public or private employer is not prohibited from asking an applicant about, or seeking from any source information regarding a particular conviction of the applicant if specified circumstances apply. This section does not prohibit an employer, whether a public agency or private individual or corporation, required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements, or to prohibit the employer from seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures otherwise provided for under federal, state, or local law.

Section 432.8 applies limitations on employers and the penalties for certain convictions as they related to marijuana prior to January 1, 1976, or a statutory predecessor thereof, two years from the date of such a conviction.

Section 433 specifies that any person violating this article is guilty of a misdemeanor. Section 434 states that these provisions do not apply to applications for employment filed with common carriers by railroad subject to the act of Congress known as the Railway Labor Act.

Section 435 prohibits an employer from causing an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes, unless authorized by court order. Any such recording is prohibited from being used by an employer for any purpose. This section applies to a private or public employer, except the federal government. And, finally, a violation of this section constitutes an infraction.