76 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com followed by conviction, about referrals to pretrial or post-trial diversion program, or about convictions that have been sealed, dismissed, expunged, or statutorily eradicated by law). 8 Lab. Code § 432.7(a)(1). 9 Id. By special exception, community youth athletic programs may request criminal history information from the Department of Justice for both volunteer coaches and hired coach candidates. Pen. Code § 11105.3. 10 Lab. Code § 432.8. 11 Starbucks Corp. v. Superior Court, 168 Cal. App. 4th 1436 (2008) (Starbucks I). And the mischief continued. The trial court permitted class counsel to conduct further discovery to find a “suitable” class representative, and ordered Starbucks to review job applications to find former job applicants with prior marijuana convictions to reveal to class counsel, unless the applicants affirmatively opted out to a neutral administrator. In Starbucks Corp. v. Superior Court, 194 Cal. App. 4th 820 (2011) (Starbucks II), the Court of Appeal granted a writ of mandate against this discovery, noting that by providing for the disclosure of job applicants with minor marijuana convictions, the lower court ironically was violating the very privacy rights contained in “marijuana reform legislation” that the class action purported to enforce. 12 Garcia-Brower v. Premier Automotive Imports of CA, LLC, 55 Cal. App. 5th 961 (2020). 13 AB 1008, codified in Gov’t Code § 12952, repealing Labor Code § 432.9. Exceptions exist for cases where the law requires a criminal history background check for the position in question. Note that California in some cases requires a criminal background check. Effective 2017, transportation network companies (e.g., Uber, Lyft) must obtain a criminal background report on each participating driver. A transportation network company must not contract with or employ any driver who (i) is registered on the U.S. Department of Justice National Sex Offender Public Website, (ii) has been convicted of any of certain terrorism-related or violent felonies, or (iii) has been convicted, within the last seven years, of any misdemeanor assault or battery, any domestic violence offense, driving under the influence of alcohol or drugs, or any of a specified list of felonies. Public Util. Code § 5445.2. 14 Gov’t Code § 12952(a). Exceptions apply for special jobs. Id. § 12952(d). 15 Gov’t Code § 12952(c)(1)(A). 16 Gov’t Code § 12952(c)(2). 17 Gov’t Code § 12952(c)(5) (employer must inform applicant of any existing procedure employer has for applicant to challenge the decision or request reconsideration, and of the applicant’s right to file a complaint with the DFEH). 18 Lab. Code § 432.7(m). 19 The ordinance would permit a conviction check after a live interview, but under state law the employer must first make a conditional offer of employment. The ordinance applies to positions at which an employee will work at least eight hours a week in San Francisco. There is also an annual reporting requirement. 20 49 S.F. Police Code §§ 4901-4920. 21 Los Angeles, Mun. Code, Art. 9, Ch. 18, § 189 et seq. Under the Los Angeles Fair Chance Initiative for Hiring (Ban the Box). The definition of “employee” extends to those individuals who are working an average of two hours per week within the geographic limits of Los Angeles, even if those two hours are telecommuting from an LA address. Id. § 189.01(I). 22 See https://bca.lacity.org/fair-chance (visited Feb. 28, 2023). 23 Lab. Code § 432.2. 24 Health & Safety Code § 120980(f) (“Except as [used for insurance risk purposes], the results of an HIV test, as defined in subdivision (c) of section 120775, that identifies or provides identifying characteristics of the person to whom the test results apply, shall not be used in any instance for the determination of insurability or suitability for employment.”). 25 Gov’t Code § 12940(o). 26 Pen. Code § 632. 27 Pen. Code § 637.2. 28 Pen. Code § 632(d). People v. Guzman, 8 Cal. 5th 673 (2019), affected section 632(d) as to criminal cases. 29 Lab. Code § 435. 30 Sanders v. Am. Broad. Co., 20 Cal. 4th 907 (1999) (employees talking around a cubicle could sue ABC news crew for surreptitiously videotaping). 31 Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009). 32 Civ. Code § 56.20(a). 33 Civ. Code § 56.20(c). 34 Civ. Code § 56.20(b). 35 Civ. Code §§ 56.11, 56.21. 36 Lab. Code § 3762(c). 37 Civ. Code § 1798.85(a)(1)-(2), (4)-(5). 38 Civ. Code § 1798.85(a)(3). 39 Civ. Code § 1798.81.5(b). 40 Civ. Code § 1798.81.5(c).
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