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I have some questions pertaining to employment law. First…

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Dear Attorney,I have some questions...
Dear Attorney,I have some questions pertaining to employment law.First some background, I presently work as a consultant at a consulting organization for the last year. I have been an outstanding employee for my company, and have received stellar reviews. The client project that I have just been assigned is in the Financial Services industry and requires me to provide and SSN, birthdate prior to allowing computer access to their system. I presume that this information is so they can run a background check.The problem is that in 2015 I was charged with two felonies (obstruction of justice related), but yet to go to trial. In August 2016, I worked with the same client and submitted the same information, and it came back clear, presumably because the charges had not show up on the report. However I am now aware that the charges are showing up on my report since December 2016.My question is the following:
- can the client deny me based on pending charges?
- can my employer terminate me based on these pending charges?
- is there legal recourse should this occur?
- what is the best approach for me to follow, submit the information and see if it shows up, or inform my manager in advance?Thanks.
Submitted: 7 months ago.Category: Employment Law
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10/5/2017
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 11,374
Experience: Licensed to practice before state and federal court
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Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

Thank you very much for your patience. Here are the answers to your questions:

  1. Unfortunately, yes, but with some qualifications. Generally, the CA FEHC limits the kind of criminal history policies adopted by a company. Employers can’t have a policy that has an adverse impact on the person in a protected class (race, gender, religion).The reason is because racial minorities are often subject to criminal penalties much more than white people and because those that are mentally disabled often suffered disparate impacts in court, the rule is designed to prohibit discrimination on the basis of criminal history when really is just a disguise for racial discrimination. California also prohibits asking a job applicant or an employee about an arrest that did not lead to a conviction. (Labor Code Section 432.7.) Accordingly, they can ask, but they have to be careful about the impact that it has.

  2. Unfortunately, yes. However, it would have to be based on some sort of policy that doesn't infringe upon the two things I mentioned above.

  3. If you feel as if you have been discriminated against because of this and you can connect it to whatever protected class you may be in, then you may be able to bring a cause of action. Otherwise, you may be able to bring a cause of action for breach of contract if you believe that your contract did not allow them to terminate you on these grounds. However, California is a at-will employment state so they can usually terminate you at any moment for any reason so long as it is not discriminatory.

  4. Normally, I have seen that honesty is the best policy. They will run their background check, but not every crime is created equal and not every crime it necessarily means that you were going to be a bad employee. I have seen that the more upfront employees are about their situation, the more understanding their employers are. Although it may seem as if employees come a dime a dozen, it is actually very difficult to find employees upon whom you can reasonably rely. therefore, they may be willing to overlook it.

Also, although I provided an initial answer, it’s important that you are 100% satisfied. If you feel I have done so, please rate me 5 stars and let me know if you have any follow up questions. As a side note, you can also click here in the future to request me individually.

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