Suitable Work SW 170
Referral, Interview, and Acceptance
This section discusses the basic principles of what constitutes "suitable work." For information regarding specific situations, refer to the section that covers the reason for refusing the job offer or referral to work.
In addition to the statutory provisions governing suitable work, case law has provided additional guidance.
In P-B-310 the Board stated:
". . . (B)efore a disqualification may be imposed for refusing suitable employment, it must be shown (1) that an opening actually existed at the time the offer was made, and (2) that the claimant was given sufficient information relative to the duties, hours of work, and working conditions so that the claimant is able to determine whether the work, in his opinion, is suitable and if any reason exists which would constitute a cause for its refusal . . . . "
- Job Must be Open
Basic to any suitable work consideration is the principle that the job opening must have existed at the time of the offer or referral.
A job opening exists when an employer is prepared to make a definite commitment to hire, regardless of when the employment is due to begin.
Example 1: A claimant is referred to prospective employment on Friday. The employer wants the applicant to begin work on the following Monday. A job opening exists, even though, as of Friday, someone else is still working on the job.
Example 2: A claimant is referred to an employer on the first of the month. The job will not begin until the first of the following month. A job opening exists even though it does not commence for a month.
Example 3: A framing carpenter is referred to a job that is to start the following Monday, weather permitting. The job opening exists even though the beginning date is contingent upon the weather, because such a contingency is customary in the construction industry.
Example 4: A stenographer is referred to a job on Wednesday. The job is to begin the following Monday if an expected contract materializes. A job opening does not exist because such a contingency is not customary in the hire of office help.
- Claimant Adequately Informed
In P-B-310, the claimant had eleven years experience as a salesperson in ladies ready-to-wear. She filed a claim and registered as a ladies ready-to-wear salesperson on September 4. On September 25, the claimant was referred to a department store. The claimant interviewed with the prospective employer who informed her he had no openings in ladies’ ready-to-wear, but she "could work out front some place in the notions or in some yardage." The claimant knew nothing about yardage and declined the offer. There was no evidence in the record to indicate that the claimant had been informed of the working conditions of the job by either the department interviewer or the employer. The Board stated:
". . . In this case, the claimant was referred by the Employment Service to a position with a department store as a sales person. She accepted the referral and called upon the prospective employer, but was informed by him that there were no openings in the claimant’s usual occupation as a sales person of ladies’ ready-to-wear. The evidence indicates that there may have been some discussion of a position involving the sale of notions and yardage. She testified that she was not informed of any of the details concerning a specific opening, nor, as far as the record shows, was there any information given her concerning the wages, hours and working conditions of the prospective position. Under these facts, we are unable to find that the claimant was offered suitable employment and refused the offer without good cause. . . . "
After determining that the claimant was adequately informed and a job opening existed, a determination can be made as to whether or not the job was suitable. If the answer to any of these questions is "No," there is no need to go further, as the claimant cannot be disqualified under Section 1257(b) unless all of these factors are present.
Additionally, in P-B-6, the Board held it is the responsibility of the Department to insure that the claimant understands he or she is being given a referral to work, in addition to informing the claimant of the possible effect a refusal of a job referral might have on receipt of future benefits. In this case, the claimant was notified of an available job as an order filler for a chain grocery warehouse. The wages and hours were discussed with the claimant and the interviewer told the claimant that this was the only available opening in his line of work. The claimant responded that he wanted something in the daytime, if he could. The interviewer did not give the claimant the referral, nor did the interviewer tell the claimant that refusing a referral could effect his eligibility for benefits. In its decision, the Board stated:
"The issues in the instant case are:
- Was the claimant aware that he was being given a referral to suitable work by the department representative.
- Was there an obligation on the department representative to inform the claimant clearly that he was being given a referral to suitable work.
The evidence shows that the potential job was described adequately, and it is clear that the claimant recognized the job description as one which fell within his capabilities. The record is virtually silent, however on the import of this recognition. . . . We conclude that the evidence in the case does not establish that the claimant realized he had refused a referral to a suitable job under the provisions of section 1257(b) of the code. The record shows he had indicated merely a preference for daytime work.
Did the department representative then have the responsibility to insure that the claimant was informed that he was, in fact, being given a referral to suitable work? We believe she did. There is no statutory obligation that the department go beyond the steps taken in this case. However, in a situation of this type, it is the department representative who has the superior knowledge. The department representative could have eliminated all misunderstanding by asking the claimant directly if he refused the referral outlined or would apply for the employment described. She did not do so. . . . Therefore, it is our opinion that the department representative had a responsibility to require the claimant to take a clear-cut position of accepting or refusing the referral. We believe, too, that she had the responsibility of advising the claimant that he risked disqualification if it were determined he had refused referral to suitable employment. In this connection, we feel the warning contained in the Handbook for Claimants is not sufficient."
It is important to note that the Board also held that the Department’s responsibility to inform the claimant that he may be disqualified for refusing a referral to suitable work is not fulfilled by presuming that the claimant has read the statement contained in the handbook.
B. The Referral Process
"Referral" means that a public employment office has directed a claimant to employment which was open at the time of the referral.
"Referral" includes any referral made by a placement interviewer, whether made in person, by telephone, by mail, or any other method that might be used to inform the claimant.
"Referral" also includes those cases where the placement interviewer would have referred the claimant to a job, but the claimant’s actions or attitude made the formal gesture futile.
"Referral" may also include a referral by the claimant’s union or an offer of work through a private employment agency.
"Referral" does NOT include referrals made from other sources, such as friends, relatives or employers.
- Referral by the Public Employment Office
Unemp. Ins. Code, Section 1257(b), provides that a claimant is ineligible if he refused or failed to apply for suitable work "when notified by a public employment office." Unemp. Ins. Code, Section 137, defines a public employment office as:
". . . a free public employment office or branch thereof operated by this State or maintained as a part of a state-controlled system of public employment offices."
In most cases, the Employment Service attempts to complete a referral during a personal interview with the claimant. When this is not practical, any one of several methods may be used, such as contact by telephone, notification by card or letter, or on occasion, through a third party.
Regardless of the method used, when determining whether the claimant has actually been referred, the following should be taken into consideration:
- The claimant must receive and understand that he has received a referral to possible employment.
- A claimant is not responsible for the actions by another party, UNLESS he or she had designated the other party as his or her authorized representative.
If there is any doubt as to whether the claimant received the referral or that he understood that he was being referred, that doubt should be resolved in favor of the claimant.
- Referrals From Other Sources
Referrals can also come from sources other than public employment offices. Such referrals may or may not raise an issue under Section 1257(b).
In the construction trades, the union is usually considered a hiring agent because most union referrals are automatically hired. Even though the employer retains the right to refuse to hire a union referral, the union can be considered a hiring agent if the employer:
- Clears with the union his or her reason for not hiring the referral, or
- Pays "show-up" time to a referral who is not hired.
Therefore, when a claimant, who is a member of a trade union that acts as a hiring agent, refuses or precludes a union referral, he or she may be subject to disqualification for refusing suitable work.
Private Employment Agency Referrals
Another method of seeking work is registration with a private fee agency. Title 22, Section 1253(c)-1, provides:
"No claimant . . . shall be denied benefits solely on the ground that he has failed or refused to register with a private employment agency or any other placement facility which charges the job seeker a fee for its services."
However, when a claimant voluntarily registers for work with such an agency, the claimant accepts this condition. And, once the claimant accepts a referral from this or any other source and, at the employer interview, precludes an offer or refuses an offer of work, an issue arises under Section 1257(b). This situation was discussed in P-B-70. The claimant was a technical writer who was referred to work by an employment agency which acted as a job shop for people in his occupation. The claimant refused the offer when he learned that the employer had to pay the agency a fee for referring the claimant to work. The Board held that the claimant had refused suitable work without good cause and stated:
". . . (I)f suitable work is offered to him through the agency with which he is registered, he does not have good cause for refusing such job merely because he or the employer would have to pay a fee for the services rendered. Otherwise, it would be an idle act for the claimant to seek work by registering with such an agency. . . ."
- Referral Acceptance
Once a referral is accepted, the claimant is expected to apply "with reasonable diligence," unless given specific instructions to do otherwise. When the claimant verbally accepts a referral, then fails to act with promptness and diligence, he or she, has in effect, refused suitable employment.
P-B-312 held that "reasonable diligence" cannot be arbitrarily defined; it must be decided from the circumstances of each particular case. In this case, the claimant arrived at the Department around 11:00 a.m. Shortly thereafter she was given a referral to employment which was two miles from town. On the day of the referral she was without transportation. The claimant telephoned the employer to make an appointment for interview. During the conversation, the claimant was told that the person authorized to do the hiring would not be available until the following morning. The claimant reported to the employer on the following morning and was told that the position had been filled. The claimant was disqualified for failure to exercise due diligence in reporting to the prospective employer. In its decision, the Board stated:
"The question or ordinary diligence must be decided from the circumstances of each particular case. If it appears from the facts that an individual is chargeable with negligence in not promptly applying for work and thereby loses an opportunity to secure employment, such individual would be subject to disqualification . . . . On the other hand, if the facts are such as to demonstrate that the individual did everything in his or her power that an ordinary and reasonably prudent individual would have done, then no disqualification under section 1257(b) of the code is proper. . . . (W)e are of the opinion that the claimant, as a reasonably prudent person, actively pursued the referral which she was given by the local office. Therefore, we conclude that the claimant did not lose an employment opportunity through any fault attributable to her and is not subject to disqualification . . . ."
The Board felt it significant to note that the claimant’s purpose for calling the employer was to arrange an appointment, not to present her qualifications or discuss the job.
The time at which the referral is made must be considered when evaluating "diligence." If a referral is made late in the afternoon, without specific instructions to report on the same day, waiting until the next workday to apply would be considered reasonable.
Certain circumstances, such as illness, accident, or legal obligation, may constitute good cause for failure to apply with reasonable diligence. However, good cause is negated if the claimant does not act upon the referral as soon as the circumstances constituting good cause no longer exist.
NOTE: If the position for which the claimant was referred is still available at the time of determination, and the claimant wishes to apply for the position and does so, there can be no disqualification for failure to apply.
- Referral Refusal
In the absence of good cause, the claimant will be subject to disqualification if, without good cause, he or she either:
- Refuses the referral, or
- Accepts a referral, but later fails to report for an interview with the employer.
In P-B-134, the claimant refused a referral explaining that she was afraid to work in the area of the employer’s business because there had been a riot in the area approximately two years prior and the rioters had attempted to overturn her car. In its decision, the Board stated:
"The prospective work was within the claimant’s prior experience . . . . At the time of the referral the claimant had been unemployed for over six weeks and had no other prospects. Accordingly, the work was in all respects suitable. . . . A claimant who is in doubt as to the suitability of work to which he is referred should apply in person to the prospective employer and ascertain at firsthand whether the work is suitable. . . . Had she investigated the area of the work location, she would have found that it was far from the recent troubles and in a quiet section of Berkeley. Accordingly, we conclude that the claimant did not have good cause for her failure to apply for this suitable work and she is subject to disqualification . . . ."
A claimant cannot be disqualified for refusing a referral to work if he or she was given several simultaneous referrals and applied to at least one of the employers. However, if the claimant was given specific instructions by the Department to contact all of the referrals, unless hired first, and in spite of these instructions the claimant failed to do so, the individual may be subject to disqualification.
A claimant who delays making contact on a referral because he or she thinks that another job prospect is about to occur, would also be subject to disqualification.
When the claimant alleges that he or she was unable to apply because of misdirection or being prevented from applying it must be shown that:
- The claimant was actually misdirected and took reasonable steps to obtain correct information, or
- The claimant was prevented from applying by compelling circumstances AND applied as soon as reasonably possible after the compelling circumstances no longer existed.
- Preclusion of Referral
If it is clear that the claimant would not be interested in the referral, the formal making of a referral would be a futile gesture and is not required for a disqualification under Section 1257(b). Such was the case in P-B-311, where the Board stated:
". . . While a referral card was not given to the claimant by the Employment Service, to have done so under the circumstances would have been an idle act, in view of the claimant’s lack of interest in the particular position. The absence of a formal referral where the claimant by her actions indicates that she will not consider the work offered is immaterial in determining whether or not there has been a refusal of a referral to suitable employment."
However, it is not sufficient for the interviewer to presume the claimant is not interested in the position. In P-B-311, the claimant was last employed as an electrical bench assembler at an aircraft company for a period of about ten months. When the claimant was laid off due to a reduction in force, she filed a claim for benefits and registered for work. The Department advised the claimant of the existence of an opening with a plastic company as an assembler. The position was permanent and the claimant was required to pass an aptitude test as a condition of hire. The claimant said she was willing to take the aptitude test and if hired would go to work, but, if her former employer recalled her to work she would quit and return to her former employer. Because of her last statement, the Department withdrew its offer of referral. At the appeal hearing, the claimant testified that at all times she was willing to accept the offered position. She contended that she wanted to be perfectly honest with the Department, and therefore informed the interviewer of her intention to return to her former employer in case of recall because it was a better job. The claimant had been unemployed for about ten weeks as of the hearing and had no definite prospects for reemployment. In its decision reversing the disqualification, the Board stated:
". . . Here, the claimant clearly indicated a willingness to apply for the position in question and a willingness to accept the work if offered. The only reservation expressed by the claimant was to the effect that, if her former employer should recall her to work at some indefinite time in the future, she would return to that employment. Her position in this respect is certainly understandable in view of the very substantial wage differential existing between the two employments. In our opinion, her statement in this respect cannot be construed as indicating an unwillingness on the part of the claimant to accept the referral . . . . Under the circumstances, since the department in effect withdrew its offer to refer the claimant to employment, the claimant may not be subjected to disqualification . . . ."
If the interviewer decides not to discuss the prospective employment with the claimant because the claimant at the outset of the interview, and before the job conditions are given, exhibits a restriction which would make it futile even to discuss the matter, then the issue raised is that of availability only and not of refusal under Section 1257(b).
C. The Interview Process
Except where otherwise noted the principles discussed apply only to interviews resulting from a referral by a public employment office or to interviews resulting from an unequivocal and outright offer of work made by an employer or his authorized agent. Interviews resulting from the claimant’s independent search for work, or from a suggestion by an employer that he apply for work cannot result in disqualification under Section 1257(b) unless an unequivocal and outright offer is made during the course of the interview. When an actual job offer is refused, regardless of the source of the referral or "lead," that refusal may result in a disqualification.
- Necessity for Interview
As a rule, it is necessary for a claimant to be interviewed by the employer when referred by a public employment office, or when the interview is requested by an employer for a definite offer of work. However, if the information given on the referral or in the offer, such as wages, hours, and other conditions of work, CLEARLY renders the work unsuitable or affords the claimant good cause for refusal, an interview with the employer is not necessary.
Such was the case in P-B-326 where the claimant refused an offer of reemployment with her former employer. While previously employed, the claimant had on numerous occasions objected to the assignment of duties which caused damage to her clothing and which did not afford her an opportunity to make appropriate changes in her attire. Her request to have this situation remedied had not resulted in a satisfactory solution to the problem. As a result the claimant voluntarily left the employment because of unsatisfactory working conditions. The employer stated that adjustments could have been made in the conditions of the employment if the claimant had responded to the offer and voiced her objections. In its decision, the Board stated:
". . . (E)vidence shows that the claimant’s supervisor was cognizant of the claimant’s reasons for leaving the work and the claimant stated that when she refused the employer’s offer of work by mail, she indicated her reasons for refusal as unsatisfactory working conditions. . . . The claimant was justified in assuming, when not notified to the contrary, that the offer of reemployment was to the same position and under the same working conditions as she had previously found to be objectionable, and therefore was under no obligation to investigate the proffered work. . . ."
However, where the claimant has any doubt as to the wages, hours, or conditions of work, or the willingness or ability of the prospective employer to adjust the terms of hire so that they will be acceptable to the claimant, the claimant is under obligation to apply in person.
In P-B-305, the Board disqualified the claimant and stated:
". . . We have previously held that a claimant who is in doubt as to the suitability of work to which he is offered a referral, must apply in person for the position and ascertain at firsthand whether or not it is suitable in fact; and that refusal of the referral under such circumstances is tantamount to a refusal of suitable work. . . ."
Occasionally, instead of a personal interview with the employer, a claimant may rely upon some substitute or alternative for the interview, such as a telephone call or sending a friend or relative.
Occasionally a claimant will send a relative or close friend to an interview with the employer on his or her behalf. Although such an arrangement may be satisfactory to the claimant and furnish him with the information required to reach a decision, it is seldom satisfactory to the employer. The purpose of an interview is twofold: To enable the applicant to determine whether the job is acceptable, and also to enable the employer to determine whether he or she wants to hire the applicant. In such cases, the claimant may be subject to disqualification for failure to apply, unless the claimant’s action in sending a substitute was indicative of diligence.
For example, a claimant is sick when due to report for an interview. He attempts to notify the employer by phone but is unable to do so. He then sends a friend to conduct the interview for him, or if the substitute is not satisfactory to the employer, to arrange for another interview when the claimant is able to attend. In this case, the claimant has shown diligence on his part, and would not be subject to disqualification under Section 1257(b) on the basis that he had relied upon a substitute.
Husband and Wife Team
In some cases, a job offer or referral for "couple" work may be made to only one member of the team. If both the husband and wife have claims, the party not present for the referral interview may be subject to a determination regarding the resultant SW issue only if:
- The claimant has a past pattern of working with the spouse as a team, and is currently registered for and seeking work with the spouse as a team, or
- The claimant has designated the spouse as the spokesman for the team and has stated that the spouse’s decision will be accepted as binding.
Occasionally, one member of a husband and wife team may receive an offer of work as an individual. If it is determined that the husband and wife meet the criteria in paragraph 1 above, and the acceptance of work as an individual by either of them would prevent them from working as a team, the individual would have good cause for refusing such an offer. A disqualification would be appropriate only if there was little or no prospect for work for the couple as a team.
- Failure to Reach Agreement
An interview with an employer may fail to result in the claimant’s hire for such reasons as the following:
- The employer decides that the claimant is not suited for the work, or that some other applicant is preferable.
- The employer and the claimant fail to understand each other. For example, if because of defective hearing or poor command of English an employer misinterprets what the claimant says regarding his qualifications and consequently makes no offer of work, no disqualification can result under Section 1257(b).
- Proposals and counter proposals by the employer and the claimant may lead the employer to conclude that the claimant would not be interested in the work, or may lead the claimant to conclude that the employer would not be interested in hiring him or her. For example, the employer may honestly believe that at one stage he agreed to the claimant’s proposals and made a definite offer, whereas the claimant may with equal honesty believe the contrary. In these cases, the decision must be based on the more plausible side of the conflict. If the statements are equally plausible, the claimant’s statement would be accepted.
- The claimant terminates the interview before any offer is made. The process of being interviewed for a job frequently involves more than one brief interview with one representative of the employer. The interview may pass through such various stages as contacting the receptionist, completing application forms, interviewing the personnel representative, and finally interviewing with the employer or supervisor for a final decision.
Where a claimant fails to complete an application, he or she may be subject to disqualification unless, (1) the application form asks questions that are illegal or unreasonable, or (2) the claimant asked the employer representative for reasonable assistance in completing the form and was refused.
Additionally, employers are frequently busy and cannot immediately give their attention to interviewees. In such a case, the claimant is expected to wait a reasonable time to be interviewed. A claimant’s failure to wait for an interview, even for an extensive period of time, is tantamount to a refusal unless the claimant had a compelling reason for failure to wait and made a reasonable effort to arrange another interview.
However, if it is shown that the employer’s delay in interviewing the claimant was unreasonable, inexcusable or intended to discourage the claimant from applying for work, the claimant would not be subject to disqualification. Such a situation may arise when an employer is prejudiced against the claimant’s age, sex, race, physical disability, or union affiliation and does not want to confront the claimant.
It must be clearly recognized that, as a general rule, a claimant may properly attempt to negotiate a higher wage or better working conditions than those originally offered by the employer. However, the claimant’s insistence upon terms that the employer is unable or unwilling to meet may result in the claimant precluding any offer of work.
- Preclusion of Job Offer
If the employer decides not to offer the job because he thinks that the claimant is not suited to the work or that some other applicant is preferable, no disqualification results under Section 1257(b).
But, where the claimant conceals or minimizes qualifications, the individual may be subject to disqualification, if as a result of the action, the prospective employer reached the conclusion that the claimant was not qualified or was not interested in the prospective employment.
In P-B-309 the claimant, a salesclerk, registered for work without unreasonable limitations or restrictions on acceptable employment. She subsequently accepted a referral to work as a salesclerk for a drug store. The claimant contacted the store and during her conversation with the employer stated that she could not sell. The claimant was not employed for this reason. At the hearing the claimant said she had believed the work required aggressive salesmanship and she was inexperienced at such work. In its decision, the Board stated:
"In many prior decisions we have held that a disinterested attitude on the part of a claimant interviewing a prospective employer is tantamount to a refusal of the work. In the instant case the work offered to the claimant was in her usual occupation as a salesclerk, and paid the prevailing wage rate in the locality. The claimant assumed that she was unable to perform the work, without giving it a trial, and her negative attitude prevented her from obtaining the position. Therefore . . . she is subject to disqualification . . . ."
While a claimant may not refuse a referral or job offer outright, his or her actions when reporting may be tantamount to a refusal. In P-B-308, the claimant was referred to work as a maintenance man by a private employment agency. He was interviewed by the employer, and hired to start the next morning. Prior to reporting to work, he had "a few drinks." Upon seeing his condition, the foreman told him that there was no work for him since he had been drinking. In his appeal, the claimant contended that the work was not suitable in the first place since it was not in his usual occupation. In its decision, the Board stated:
"In the instant case the claimant was referred to employment, interviewed, and was offered employment commencing the next day. However, he reported to work in a condition which precluded his entering upon the job. Although he contends the work was not suitable, his contention is without merit inasmuch as he was fully aware of the conditions of employment and accepted them. The claimant had not actually commenced to perform any work. We therefore hold that he . . . without good cause, refused to accept suitable employment when offered to him."
Another situation in which the claimant may preclude an offer of work is that in which the individual has recall rights to employment, but the employer is unable to contact the claimant because of an incorrect address. For example, in P-B-92 the claimant was laid off for lack of work on March 20. As employees were laid off and recalled in order of seniority and in accordance with a collective bargaining agreement, they were required to provide the employer with a current address. Employees who did not respond to a notice of recall within three days were dropped from the recall list. When the claimant was laid off, she was told (both verbally and in writing) to keep the employer informed of her current address. While on layoff, the claimant moved. The employer attempted to contact the claimant by telegram, but, after three days with no response, removed her name from the rolls. The claimant testified that she had notified her supervisor, but at the hearing, the slip submitted by the supervisor showed only her prior address. In its decision, the Board stated:
"The employer was under a contractual obligation not only to offer this claimant work on that day but to hold the job for the claimant for at least three days. The claimant was obligated to keep the employer informed of her current address during the period of her unemployment. Had the claimant met this obligation, she would have been offered suitable work. . . .
(A)lthough she testified that she did meet her obligation to the employer . . . the preponderance of the evidence established that she did not do so. Thus, she effectively precluded the receipt of the offer of work. . . . "
- Failure to Report for Work or Preemployment Physical and Failure to Pass Preemployment Physical
Unemp. Ins. Code 1257(b) provides in part:
"An individual is also disqualified for unemployment compensation benefits if:
(b) He or she, without good cause, refused to accept suitable employment when offered to him or her, or failed to apply for suitable employment."
Failure to Report for Work:
A claimant who accepts an offer of work but without good cause fails to report for work as directed, is subject to disqualification under Section 1257(b).
If the claimant is prevented from reporting to work because of some compelling reason, he or she has good cause, provided the individual notified the employer of the circumstances.
If the compelling circumstances are such that there would be no possibility of the claimant’s obtaining employment, notification is not necessary.
For example: A claimant who was prevented from reporting for work which he had accepted because of temporary illness, would have good cause provided he informed the employer of the circumstances. However, if the illness or accident was such that there was no hope of the claimant’s obtaining the employment, he would not be obliged to inform the employer.
If the acceptance of some other employment constitutes the claimant’s reason for not reporting to the accepted work, the controlling principle is similar to where a claimant quits one job in order to take another. The other work must be:
- Definitely assured.
- Permanent; except if the work to which he did not report was only temporary, the other work may also be temporary.
- Equal or better, in terms of pay and working conditions.
NOTE: If the claimant shows up for work and performs any work for even the briefest period and then quits or is discharged, the issue is a separation under Section 1256.
Failure to Pass or Failure to Report for Preemployment Physical
A claimant’s failure to pass a physical does not raise an issue under Section 1257(b). However, when a claimant refuses to take a physical, a question of eligibility is raised under Section 1257(b). In such cases, the claimant’s eligibility is determined the same as a refusal of work; his or her eligibility is based on the reason for the refusal. (Refer to the Section that covers the basis for the claimant’s refusal.)
A private employer may condition an offer of employment on the results of a medical examination conducted to determine fitness for the job, including tests for drugs and alcohol, provided all applicants in similar positions are given the examination. The employer requirement is also subject to certain restrictions on discriminatory conduct regarding race, color, religion, sex, national origin, age, physical handicap, or certain medical conditions.
The major problem area in preemployment physicals is that of drug testing. Regarding such testing, the California Labor Code, Section 1025 provides:
"Every private employer regularly employing 25 or more employees shall reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer.
Nothing in this chapter shall be construed to prohibit an employer from refusing to hire, or discharging an employee who, because of the employee’s current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others."
In Wilkinson v. Times Mirror Corporation, a California Court of Appeal case, Ms. Wilkinson and her two coplaintiffs agreed to take the physical examinations required by the employer, but refused to agree to being drug or alcohol tested as a part of that examination. When they were denied consideration for employment based upon their refusals, they sued the Times Mirror and four other businesses under Article 1, Section 1 of the California Constitution, which provides:
"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
The plaintiffs contended that no private employer may ask an applicant to consent to an invasion of privacy simply because the applicant has no independent "right" to the job in the first place; that drug testing is unreliable and ineffective in accomplishing the goal of a drug-free workplace; and there was no direct relationship between drug testing and fitness for the job.
The defendants contended that the privacy consideration of the California Constitution did not apply to private employers; that there was minimal intrusiveness in the drug testing as the applicants were taking physical exams anyway; that the testing procedures were designed to minimize intrusion into individual privacy; that the applicants were aware of the employer policy at the time they applied for work; and that there was a direct relationship between physical condition and medical history and the job.
In defining the concept of "privacy" in the context of the California Constitution, the Court stated:
". . . The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose. It prevents government and business interests from collecting and stockpiling unnecessary information about us and from misusing information gathered for one purpose in order to serve other purposes or to embarrass us."
The Court found that applicants for employment, as opposed to employees, have no reasonable expectation of privacy. "An employer may require an employee to meet physical standards reasonably related to the duties required by the job and the health and safety of the employee or others." Additionally, the court found:
"A private employer has considerable discretion in setting job-related hiring standards. A private employer unquestionably has a legitimate interest in a drug and alcohol-free work environment, and in excluding from employment those individuals whose drug and alcohol use may affect their job performance or threaten harm to themselves . . . . Our conclusion is not necessarily a conclusion that preemployment drug and alcohol testing of private sector job applicants is either good public policy or the best solution to the problems of drug and alcohol abuse in the work force. . . . The difficult and delicate task of balancing the privacy rights of job applicants and employees against the legitimate business safety concerns of private employers involves policy determinations which are peculiarly within the purview of the Legislature, and we urge that body to recognize and act on its obligation to provide guidance in this much debated area."
In the Wilkinson case, the applicants did not consent to the drug screen as part of the routine preemployment physical, and the employer requirement was found to be neither violative of privacy considerations nor unreasonable. The Court did, however, issue a general warning:
"We do not hold that all preemployment drug and alcohol testing by private employers is constitutional, or that a private employer’s hiring practices are absolutely immune from judicial scrutiny. There may be preemployment inquiries and requests of a personal nature which are so intrusive as to be constitutionally unreasonable. . . ."
In contrast to private employers, public employers are constrained by the Fourth Amendment to the U.S. Constitution, which provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The term "governmental employer" refers not only to federal and state employment, but to city and county governmental entities and to those entities substantially regulated by the state, such as public utility districts.