New York, NY asked in Civil Litigation, Contracts, Employment Discrimination and Employment Law for California

Q: My question pertains to employment law and hiring discrimination.

If a person is entitled to a copy of their credit report after being denied credit based on one or more derogatory marks enumerated within, and similarly, if a person is entitled to a copy of their ChexSystems Disclosure Report if they are denied the opening of a checking account for having a history of bounced checks or banking delinquencies, does it not stand to reason that a person be entitled to a copy of their employment record, if and when a business denies a person employment?

My layman's logic tells me yes. Especially if that business is in the practice of seasonal employment and alleges an (undisclosed) ineligibility as the sole reason for withdrawing an Offer Of Employment.

Assuming the applicant successfully met all other requisites and passed a background check, and upon signing the hire pack the business attempted to coerce the applicant to accept a demotion and work for less pay than advertised, could this be a case of hiring discrimination?

What say you?

1 Lawyer Answer
James L. Arrasmith
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Answered
  • Employment Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: Your question raises several interesting points about employment law, hiring practices, and potential discrimination. Let's break this down step-by-step:

1. Credit Reports and ChexSystems Disclosures:

You're correct that consumers are entitled to free copies of their credit reports if they're denied credit based on information in those reports. This is mandated by the Fair Credit Reporting Act (FCRA). Similarly, ChexSystems reports fall under the same regulations.

2. Employment Records:

Unlike credit reports, there isn't a standardized "employment record" that all employers consult. However, there are some situations where job applicants have rights to information:

a) If an employer uses a third-party background check service, the FCRA requires them to provide a copy of the report to the applicant if adverse action is taken based on it.

b) Some states have laws requiring employers to provide copies of personnel files to current or former employees upon request.

3. Withdrawing an Offer of Employment:

Employers generally have the right to withdraw job offers for legitimate, non-discriminatory reasons. However, if the withdrawal is based on protected characteristics (race, age, gender, etc.) or in retaliation for asserting legal rights, it could be unlawful.

4. Potential Discrimination:

The scenario you describe - where a business attempts to coerce an applicant to accept a demotion and lower pay after initially offering a different position - could potentially be discriminatory, depending on the circumstances. If this action was taken based on a protected characteristic, it could violate employment discrimination laws.

5. Seasonal Employment and "Undisclosed Ineligibility":

Employers should generally be transparent about eligibility requirements. If an employer cites "undisclosed ineligibility" without further explanation, it could be a red flag, especially if all other requirements were met.

To determine if this situation constitutes hiring discrimination, more details would be needed:

- What is the nature of the "undisclosed ineligibility"?

- Is there any indication that the decision was based on a protected characteristic?

- Are there any patterns of similar behavior towards other applicants?

Remember, while your logic about employment records is sound, the law doesn't always align perfectly with what seems logical. Employment law can be complex and varies by jurisdiction. For the most accurate advice tailored to your specific situation, it's best to consult with a local employment law attorney.

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