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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11250
Experience:  Significant experience in all areas of employment law.
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I was recently offered a position w/in this new organization

Customer Question

Hi.i was recently offered a position w/in this new organization and i was told that they will run my background check and drug test. However they didnt do any of that and i already started working..now they're telling me that normally they do both checks before you start but since they were busy they didnt get to mine but let me start anyway. I have a clean background but my credit is pretty bad. I dont know exactly what theyll be checking but i was told that theyll be doing this during my first 2 weeks as a new hire and go from there. I live in California and im not sure if this us legal. Im afraid that i might get terminated at any time because of my credit.... my question is can they termjnate me due to an unsuccessful background check & can they ask for .me to take the drug test now that i am.employed. (company has no random testing policy )
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Good evening and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.
Can you tell me what sort of work you've been hired to do? This potentially affects whether your employer can conduct a credit check, which is why I ask.
I very much look forward to helping you on this matter.
Customer: replied 1 year ago.
HR/recruiters assistant.
Can they terminate me after the fact? ive been there for over 2 weeks. I have feduciary responsibilities. Mostly admin stuff.
Customer: replied 1 year ago.
No feduciary responsibilities. ..
Expert:  Patrick, Esq. replied 1 year ago.
Thank you. The new law which limits an employer's ability to conduct credit checks is contained within Labor Code 1024.5. It states:
(a) An employer or prospective employer shall not use a
consumer credit report for employment purposes unless the position of
the person for whom the report is sought is any of the following:
(1) A managerial position.
(2) A position in the state Department of Justice.
(3) That of a sworn peace officer or other law enforcement
position.
(4) A position for which the information contained in the report
is required by law to be disclosed or obtained.
(5) A position that involves regular access, for any purpose other
than the routine solicitation and processing of credit card
applications in a retail establishment, to all of the following types
of information of any one person:
(A) Bank or credit card account information.
(B) Social security number.
(C) Date of birth.
(6) A position in which the person is, or would be, any of the
following:
(A) A named signatory on the bank or credit card account of the
employer.
(B) Authorized to transfer money on behalf of the employer.
(C) Authorized to enter into financial contracts on behalf of the
employer.
(7) A position that involves access to confidential or proprietary
information, including a formula, pattern, compilation, program,
device, method, technique, process or trade secret that (i) derives
independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by, other persons who may obtain economic value from the
disclosure or use of the information, and (ii) is the subject of an
effort that is reasonable under the circumstances to maintain secrecy
of the information.
(8) A position that involves regular access to cash totaling ten
thousand dollars ($10,000) or more of the employer, a customer, or
client, during the workday.

The type of position you describe would not seem to fall within any of these categories, though of course you know far more about the position than I do and thus are the only one who can definitively make this determination. But assuming the position is not one for which an employer can conduct credit checks, you could refuse to authorize the credit check (by law they can't even run your credit without your consent) and if the position is rescinded you could sue for wrongful termination.
As far as the drug test is concerned, employers are allowed to conduct drug tests upon hiring new employees. The fact that your employer has waited a couple weeks would not cause them to forfeit this right. Thus, they could conduct a drug test and terminate you if the drug test comes back positive.
I hope that you find this information helpful. 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, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.
Customer: replied 1 year ago.
How does the law define a new hire for drug testing purposes? I know Ill pass it but what if they wait a few more weeks to get this done. I just feel like they didnt even follow their own process as stated on their policy and my offer letter. My offer letter says that my start date is contingent upon a Successful Completion of my drug and background Check. However ive been there for almost 3 weeks and nothing has been set up for me for the drug test and they haven't even started my background check.
Expert:  Patrick, Esq. replied 1 year ago.

Thank you for your reply. The law does not define "new hire" for this purpose. However, so long as the purpose of your drug test is because you were hired, and not simply "random" then it is going to be legal. Here, even though some time has passed, the purpose of this drug test is very clearly because you were hired as that is your understanding and also your employer's policy. There is no contesting the legality of a drug test on this basis.

I hope this clarifies things. Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Very best wishes.