Fred Geonetta
By: Fred Geonetta

Can An Employer Make You Take a Drug Test Before Hiring You?

If you seek employment in California, and if a prospective employer violates the hiring laws and discriminates against you, can you take legal action? The answer is “yes,” but you will need to contact a San Francisco employment rights attorney for personalized legal advice.

Can an employer in California conduct a background check as part of the hiring process? Can an employer require you to take a drug test as part of that process? What are your rights as a job seeker in California, and how will an attorney help you if an employer violates those rights?

If you will keep reading this short discussion of drug tests and background checks for employees and prospective employees in California, you’ll find the answers to these questions, and you will also learn more about your employment rights under California law.

Is Drug Testing by Employers and Prospective Employers Legal in California?

California employers may conduct drug tests within narrow, specific legal guidelines. The law in California requires employers who test for drugs to conduct those tests in compliance with the law and in a manner that respects the privacy of job applicants and current employees.

California employers may require a drug test as a condition of employment after a job is offered but before a new employee starts working. In 2024, state law will begin protecting job applicants from hiring discrimination if they use cannabis during off-hours and away from the jobsite.

In most cases, California law prevents employers from “randomly” requiring drug tests for employees and prospective employees. The courts make decisions in these cases on a case-by-case basis to determine if an employer’s purpose for drug testing justifies the invasion of privacy.

In What Circumstances May Employers Require Drug Testing?

However, when specific facts indicate that an employee may be impaired on the job, employers may require a drug test. For example, employers may require drug testing for employees who are involved in a workplace accident or for a delivery driver who was involved in a traffic accident.

While most employers in California are not allowed to conduct random drug tests, the courts in this state usually allow random drug-testing for employees who are in safety-sensitive positions – employees such as airline pilots and bus drivers, for example.

Employers who conduct drug testing are required to keep the test results confidential. If you believe that an employer has illegally compelled you to submit to drug testing, schedule a free consultation at once to discuss your concerns with a San Francisco employment rights lawyer.

May Prospective Employers Conduct Credit Checks?

Like so many of the questions about employment rights, the answer to whether or not an employer may legally conduct a credit check is “It depends.” Some employers in California may legally conduct credit checks on prospective employees, but only for certain types of positions.

Specifically, California employers may conduct credit checks for positions where employees could be bribed or tempted to steal in order to compensate for money they may desperately need. Employers may conduct credit checks for jobs including but not necessarily limited to:

  1. banking, accounting, and financial planning
  2. law enforcement officers, jail employees, and prison guards
  3. government positions
  4. jobs in casinos

Prospective employers must notify job applicants when they intend to conduct credit checks. A prospective employee may decline to submit to a credit check, but declining a credit check in these cases almost certainly means that a prospective employee will not be offered employment.

May Prospective Employers Conduct Criminal Background Checks?

The California Fair Employment and Housing Act prevents most employers with five or more employees from asking you on a job application about your criminal record, and it prevents most employers from considering your criminal record before making a conditional job offer.

Before offering a position to a prospective employee, a California employer may conduct a criminal background check on that person only for very narrow legal reasons. Any background check must be directly related to the job and essential for the employer to operate the business.

Which Employers May Conduct Criminal Background Checks?

The law in California allows employers to conduct criminal background checks for jobs in fields that include (but are not necessarily limited to):

  1.  the banking and securities industries
  2.  law enforcement, the military, and positions that require federal security clearances
  3.  armored car drivers, security guards, and prison guards
  4.  child care and care of the disabled and elderly

However, the law in California prohibits prospective employers who conduct background checks from considering or denying employment solely on the basis of:

  1.  arrests that did not lead to convictions
  2.  arrests, detentions, or dispositions made under a juvenile court’s jurisdiction
  3.  convictions that have been expunged, sealed, or eliminated
  4.  non-felony marijuana possession convictions that happened more than two years ago
  5.  pre- or post-trial participation in a diversion program

Have Your Employment Rights Been Violated?

To summarize what you have read so far, the law in California permits employers to conduct drug tests and background checks only in very specific circumstances.

An employee or a prospective employee may have a valid legal claim against a California employer based on how a drug test or background check was conducted or how the results of a drug test or background check were used.

California employers must comply with the laws regarding drug tests and background checks. If an employer has illegally drug-tested you or violated your employment rights in some other way, promptly schedule a free legal consultation with an employment rights attorney.

What Else Should You Know?

If an employer in California has violated your employment rights, or if you’re not sure, arrange as quickly as possible to discuss your concerns with a San Francisco employment rights attorney. Your first legal consultation is provided without any cost or obligation.

You will receive candid, personalized legal advice. If you move forward with legal action, your employment rights attorney will fight aggressively and effectively for the justice you deserve. If your claim prevails, you may recover monetary compensation for the wrong you’ve suffered.

No one who works or seeks a job in California should be a victim of employment discrimination. A San Francisco employment rights lawyer will fight on your behalf if you have a discrimination claim against an employer, but you must take the first step – and contact that lawyer promptly.

Fred Geonetta
By: Fred Geonetta

Frederick J. Geonetta is a graduate of the University of California, Hastings College of Law. His legal practice is entirely devoted to litigation. Mr. Geonetta has spent the past 25 years in private practice representing both plaintiffs and defendants who have been harmed or wronged by the actions of others or who have been falsely accused of causing harm to others. He represents clients across the U.S. and international clients who seek U.S. legal advice or representation.