66 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com person’s ability to perform duties or responsibilities necessarily related to the employment position.” The ordinance also imposes special notice, posting, and recordkeeping requirements on covered employers.20 In 2018, San Francisco amended its Fair Chance Ordinance to align it, in some respects, with California’s banthe-box law. For violations occurring after October 1, 2018, employers are subject to increased penalties for noncompliance: $500 for the first violation; $1,000 for the second violation; and $2,000 for further violations (under the initial Ordinance, the maximum penalty was $50). The amended Ordinance grants aggrieved individuals a right to file a civil action, if they file a complaint with the OLSE and exhaust their administrative remedies. San Francisco bars covered employers from considering convictions that are more than seven years old (measured from the date of sentencing) and infractions. The Board further amended the Ordinance to add a new category of “off limits” information: convictions that arose out of conduct that has since been decriminalized. 4.2.3 Los Angeles ordinance limiting inquiries into criminal history Under the Fair Chance Initiative for Hiring Ordinance, employers with ten or more employees in the City of Los Angeles may not procure a background screen for employment purposes or ask about criminal history until making a conditional offer of employment, contingent only on the results of the background screen.21 The LA Bureau of Contract Administration has an Individualized Assessment and Reassessment Form that employers should complete in making a preliminary decision to reject an applicant based on criminal history. The form addresses both individualized assessment and reassessment. Most of the form reflects an initial individualized assessment, to deliver with the pre-adverse action notice and any federal or state disclosures, such as the summary of rights, and a copy of the consumer report. If applicants provide additional information about their criminal record after receiving the pre-adverse package, the employer must complete the reassessment portion of the form and provide it with the final adverse action notice.22 4.3 Polygraph Tests California employers must not require, as a condition of employment, an applicant or employee to take a polygraph, lie-detector test, or “similar” test. Employers may request a person to take such a test, but only after first advising the person, in writing at the time of the test, that the employer cannot require the test.23 4.4 HIV Testing HIV test results cannot be used to determine insurability or suitability for employment.24 4.5 Genetic Testing California employers must not, directly or indirectly, subject applicants or employees to tests for the presence of a genetic characteristic.25 4.6 Tape Recording and Videotaping 4.6.1 Confidential communications It is a crime for a California employer or employee to surreptitiously tape-record confidential communications.26 Violators are liable for civil penalties in amounts of up to $5,000 per violation, or three times any actual damages, whichever is greater.27 The recording may not be used as evidence, except to prove a violation of the statute.28
RkJQdWJsaXNoZXIy OTkwMTQ4