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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1839
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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Can I be charged for pre employment tests in CA? Specifically

Customer Question

Can I be charged for pre employment tests in CA? Specifically I have been told that since I did not accept the conditional hire and/or 'resigned' within 90days I am responsible for the costs of hiring. I have never been paid by this company nor was I paid to go take the pre employment tests.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

Hello and tank you for your question

Employment-LawExpert :

Are you online with me today?

Employment-LawExpert :

Welcome to the chat

Customer:

yes

Employment-LawExpert :

Are you applying for a security guard position?

Customer:

no Paramedic

Employment-LawExpert :

Did they give you any reason whatsoever as to why that would not apply to you? Or did they just say that it would not apply?

Customer:



Dear Mr. Gregory:


We are in receipt of your email (below). We hold to our position that the agreement you signed is valid and that Medic has the right to reimbursement of the fees addressed in the agreement.



You cited Labor Code Section 222.5 which states: “…no person….shall require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.” {emphasis added}



You should know that the agreement you signed is not a requirement of any Federal, State, or Local agency. It is an agreement between you and Medic and is a valid contractual agreement.



Therefore, please consider this a demand for reimbursement as outlined in this email string below for a sum total of $218.00. You may contact Les Carter in our Sacramento office (XXX-XXX-XXXX or XXXXX@XXXXXX.XXX) to arrange payment.



Please make such payment by May 11 in order to avoid turning this matter over to collections.




Customer:

They obviously paraphrased 222.5, in its complete form I think it clearly covers tests conducted as a requirement of employment...

Customer:

222.5. No person shall withhold or deduct from the compensation of
any employee, or require any prospective employee or applicant for
employment to pay, any fee for, or cost of, any pre-employment
medical or physical examination taken as a condition of employment,
nor shall any person withhold or deduct from the compensation of any
employee, or require any employee to pay any fee for, or costs of,
medical or physical examinations required by any law or regulation of
federal, state or local governments or agencies thereof.

Employment-LawExpert :

No you are correct in your assessment of the statute. The only exception to the statute would be under the 2004 Security Officer Registration Act. However, as a paramedic, this would not apply to you. The only other possible explanation would be that they are trying to state that the reason for the test was not because of employment, but was for a non employment based reason

Employment-LawExpert :

which is why I asked if there was a reason that it was given. What was the testing for exactly?

Employment-LawExpert :

There is an exact statement to this affect directly from the DLSE. Please give me a few minutes to find it for you

Customer:

according to the document I signed

Customer:

pre employment drug test, physical, epic lift test, background check

Employment-LawExpert :

There is no legitimate legal ground why you would be required to pay for this testing. If they require it from you, you should consider filing a claim with the DLSE. They will make sure that it is taken care of, and that you are not required to pay this amount.

Employment-LawExpert :

Additionally, if you were not hired at this job, you could potentially have a retaliation claim against this employee for retaliating against you for asserting your rights.

Customer:

I tried calling DLSE ugh government agency backlogged. What I am worried about is the company sending it to collections and tarnishing my credit

Customer:

they are demanding payment by 11May13...

Employment-LawExpert :

You have a few options in this instance. You can pay it, and then get the money back from the DLSE or you can not pay it, and eventually have a larger claim against them for sending it to collections, as there would be a very strong argument here for emotional damages, damage to reputation etc. In this instance, you may want to get an employment attorney involved. if you decide to hire an attorney, a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys prior to selecting the one you feel most comfortable with. In a case like yours, they would take your case on contingency, which means that you would end up owing nothing out of pocket.

Customer:

They also had a Patrick Jordan from PJordanLaw.com amswer that he agreed with what they are saying...

Employment-LawExpert :

? How did that occur

Employment-LawExpert :

Are you sure this is a legitimate company?

Customer:

and continue to say that because I signed the re-Imbursement agreement that I must pay. I contest that that was not a voluntary signature as I was told that to be considered for employment all docs must be signed....

Customer:

not sure at all. It was a reply all email from that individual

Customer:


Looks good to me.
Sent from my iPhone

On May 1, 2013, at 9:17 AM, Tim Bonifay <XXXXX@XXXXXX.XXX> wrote:




Dear Mr. Gregory:


We are in receipt of your email (below). We hold to our position that the agreement you signed is valid and that Medic has the right to reimbursement of the fees addressed in the agreement.



You cited Labor Code Section 222.5 which states: “…no person….shall require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.” {emphasis added}



You should know that the agreement you signed is not a requirement of any Federal, State, or Local agency. It is an agreement between you and Medic and is a valid contractual agreement.



Therefore, please consider this a demand for reimbursement as outlined in this email string below for a sum total of $218.00. You may contact Les Carter in our Sacramento office (XXX-XXX-XXXX or XXXXX@XXXXXX.XXX) to arrange payment.



Please make such payment by May 11 in order to avoid turning this matter over to collections.



Thank you,




Tim Bonifay


Administrator


Medic Ambulance Service


XXX-XXX-XXXX x105


XXX-XXX-XXXX cell







Customer:

That was sent from email addyXXX@XXXXXX.XXX

Customer:

XXXXX@XXXXXX.XXX sorry

Customer:

just googled it it would appear legit as a labor law firm

Employment-LawExpert :

Here is the exact language of the statute:

Employment-LawExpert :

222.5. No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.

Employment-LawExpert :

Here it is discussed further by the DLSE:

Employment-LawExpert :

http://www.dir.ca.gov/dlse/faq_deductions.htm

Employment-LawExpert :

As you can see, it specifically states" or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment,"

Customer:

I found those as well in my reasearch which has led me to this point. As I read it it appears 100% illegal but what can I do with a company that is demanding payment and has legal counsel? Do I pay $200/hr to not have to pay $218??? Seems like such an injustice...

Employment-LawExpert :

No, again, you have two legitimate options here. You can pay the $218, not have this affect your credit, and then get the $218 back by filing a complaint with the DLSE yourself. Or, you can not pay the $218, risk having it go on your credit report, but then be able to recover the emotional harm, and any harm done to you as a result of this affecting your credit report. You can either make this claim yourself through the DLSE, or you can get an attorney involved who would take this case on contingency, which means that they would not charge you anything out of pocket. They would take a percentage of the final proceeds of this case.

Customer:

I am having a tough time finding any attorney that will take a $218 case...much less on contingency...

Employment-LawExpert :

Personally, if it is was me, I would bring this information to the attention of their attorney specifically, i.e. contact Patrick Jordan specifically. Since he would not have a legitimate reason for charging you, and if you could explain to him the situation, he would likely get them to drop this as it will cost them significantly more in the future.

Employment-LawExpert :

The case would not be just for the $218. The case would be for them messing with your credit report intentionally, against the law

Employment-LawExpert :

If you paid the $218, then you would file a claim with the DLSE here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm without the help of an attorney.

Employment-LawExpert :

Does that make sense?

Customer:

That does make sense. I never considered talking to their attorney. That sounds like my plan of attack. Talk to their attorney first if no progress is made pay the bill and file a claim.

Customer:

anything specifically I should bring up to the attorney?

Employment-LawExpert :

That they required you to do this testing in order for you to get the job, the type of testing, that the statute says "or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment" and that if this goes on your credit report, it woudl be a clear violation of the FDCPA, the FCRA, and California's FDCPA.

Customer:

That sounds very good. Best way to ask them to stop this action?

Employment-LawExpert :

Just make sure that you do it in a polite and professional manner. Explain the law, explain that if they refuse to deal with this, that you will be making a claim with the DLSE, and that you have already suffered severe emotional distress as a result of what has already occurred.

Customer:

Would you send the email directly to the attorney or reply all?

Employment-LawExpert :

Just remember to be upset about the situation and not at the person themselves

Customer:

that is GREAT advice right there!

Employment-LawExpert :

If they are represented by the attorney, I would contact the attorney directly. You can also send an email directly to the individual you have been dealing with, however, instead of that, I would call, and ask to speak to that persons supervisor.

Customer:

Thank you very much for your advice.

Employment-LawExpert :

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

Employment-LawExpert :

Have a wonderful rest of your day, and good luck!

Customer:

Cheers! Excellent service rating coming up!

Employment-LawExpert :

Thank you very much. If you need any help in the future, please do not hesitate to ask for me specifically, and I will be happy to assist you further.

Customer:

I certianly will. Have a great day Sir.

Employment-LawExpert :

You too

Brandon, Esq., Lawyer
Satisfied Customers: 1839
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you

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Brandon, Esq.
Brandon, Esq.
California Employment Lawyer
1839 Satisfied Customers
Has received a certificate of recognition from the California State Senate for his outstanding legal service.