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Can an employer require a credit check as a condition of employment after an offer has been made?

San Diego, CA |

I live in California and read that a law was passed in 2011 (AB22) prohibiting employers from requiring credit checks as a condition of employment, unless the position is in a particular category (managerial, financial institution, handles more than $10k cash, confidential or proprietary information, etc.). I've received an offer as a biller for a law firm. (I won't be handling any cash in the position). I don't think the position falls under any exception except maybe the confidential information exception, but it seems that deals more with trade secrets and things like that. If I don't agree to the credit check, can they rescind the offer?

Also, this is not an at-will issue since I haven't taken the job. I'm also not interested in taking an "adversarial posture" with the employer, which is why I sought out this forum to see if anyone has had experience with this issue. I'm interested if any Employment Law Attorneys have had experience with the California law Governor Brown signed into effect in late 2011 that now prohibits employers from requiring a credit check as a condition of employment for most positions.

Attorney Answers 5

Posted

We don't have sufficient info about the details of your new job to get deeply analytical, I suggest to you that this is the wrong question altogether.

Look, employment in California is at will unless you are represented by a union or have an employment contract. Neither of those is going to be the case if you are working for a law firm. So you are going to be an at will employee and that means that you can be fired the day after you start (or any day thereafter for the duration of your employment) for humming in the elevator, wearing ugly shoes, or any other reason -- or for no reason.

If the circumstances of this new job are such that you are already worried about asserting your legal rights in an adversarial posture with the firm, how long do you think this new job will last? It would take a firm full of attorneys less than a week to figure out a fully defensible articulation of wholly lawful bases for terminating you (or any other employee). In fact, if it is the will of the attorneys in the firm, it will take them just a few minutes to come up with a legally defensible articulation of a reason for rescinding the offer -- if it is a legal offer at all.

I recognize the difficulties of acquiescing in what you think is a violation of your statutory rights. And I think credit checks for employees is a horrible practice. But you have to come to grips with the reality of the negativity that ordinarily results from adversarial negotiations -- especially as a taint taking root in the first few days of new employment.

It would be much sounder for you to have an open and constructive discussion with the hiring person. Why does the firm think a credit check is necessary? What are the responsibilities that cause this request? Give and take, with lots of give on the side that wants the job. Or be prepared for a potential lesson in at will employment.

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4 comments

Christine C McCall

Christine C McCall

Posted

Postscript: Your statute is Section 1785.20.5 of the Civil Code and sections (5) (6), (7), and (8) are very likely the potential bases for the firm's position.

Christine C McCall

Christine C McCall

Posted

Sorry, device is acting up: Should read: "Your statute is Section 1785.20.5 of the Civil Code and Labor Code 1024.5. Lab Code §§ (5) (6), (7), and (8) are very likely the potential bases for the firm's position.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Excellent guidance from Ms. McCall!

Steven Joseph Alves

Steven Joseph Alves

Posted

Agreed! Great advice.

Posted

Ms. McCall has done a great job laying out the practical implications of taking an adversarial posture against your employer--something employees so often overlook in their quest to understand their rights and remedies under the law.

Given that your employment is likely "at will," it is best to tread lightly. While you cannot be fired for refusing to agree to an illegal credit check, you can be fired for a host of other lawful reasons which a firm full of lawyers will have no trouble inventing as you progress in your employment. I'm not saying it's pointless to assert your rights, but it is important to pick your battles and usually better to work collaboratively with your employer than against them.

http://www.johnphillipslaw.com

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

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Posted

not enough facts.

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Posted

Although I agree you haven't offered a detailed description of the position being offered, the billing aspect of a law firm operation may handle confidential and attorney client privileged information but I doubt you would be exposed to trade secrets as defined in California Civil Code Section 3426.1, So, I tend to agree with you. I suspect they simply aren't aware of the new law and I also doubt the exceptions have been tested in court. Obviously, they can rescind the offer and then you will be looking to hire an attorney. Maybe you get to be the first case cited,,, do you want to be?

THIS IS A GENERAL ANSWER TO A GENERAL QUESTION AND SHOULD NOT BE RELIED UPON AS A FULL LEGAL ANALYSIS OF ANY FACTUAL MATTER. An attorney-client relationship is not established or offered solely as a result of this answer.

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3 comments

Christine C McCall

Christine C McCall

Posted

Trade secrets is not the issue here: CA Labor Code §1024.5. (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: ... (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. [emphases added] (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. These are all predictable duties and responsibilities in a law office billing department.

Thomas Carson Walker

Thomas Carson Walker

Posted

No, he was correct in his statment. Confidential or proprietary information in AB22 was drafted as intended to be defined with reference to Trade Scret law, CC 3426.1. You argue a law office billing department is part of a retail establishment, really?

Christine C McCall

Christine C McCall

Posted

No, it most definitely NOT a retail estab. We are reading this statute -- and its poor use of conjuctions and disjunctions -- very differently. A position that involves only, for example, duties specified in item (6) justify the firm's position. I have zero doubt that this is how the firm is interpreting and applying this statute. Let us hope for this asker's benefit that his dialogue with the firm on the issue is more productive and conclusive.

Posted

It is unclear based on your facts whether the billing position would fall under the trade secrets exception of Labor Code section 1024.5 (AB 22). If your billing position gave you access to fee bills which described the services being performed for clients of the firm, this information is arguably trade secrets. I echo earlier commenters that this is likely an unresolved issue with a new law, so you would need to decide whether you want to be the vanguard on this issue. I also doubt you would find an attorney willing to take a case like this on contingency, given the uniqueness of the issue.

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