Lesson Last Updated: October 14, 2024

Lesson Highlights

If you routinely ask job applicants for a copy of their driver’s license as part of the application process, you might want to pump the brakes. One of 2025 new laws will make some changes as to when you’re legally allowed to do that!

In this lesson, we'll cover the following topics:

• Basic explanation of what these legal changes do;
• Two-part test for determining when employers can ask for a copy of a driver’s license; and
• Possible penalties. 

We’ve also highlighted any suggestions for compliance in yellow below, but always speak with an attorney to determine what specific steps are right for you. 

What’s Changed?

Before Governor Newsom signed SB 1100 into effect in September 2024, “Existing law [prohibited] various forms of employment and housing discrimination, including various types of discrimination because of national origin, defined to include discrimination on the basis of possessing a driver’s license….” [1] While national origin is the specific protected characteristic noted in the bill’s text, it’s also important to note that disability may also be a protected characteristic that impacts whether or not a person holds a driver’s license.

However, even under this previous law’s protection, employers often still required applicants to have a driver’s license even if driving is not part of the position at hand, according to the bill’s author, State Senator Anthony Portantino. SB 1100 sought to close that “loophole” of sorts (and just as a side note, this is often what the legal changes we see year-after-year are–closing loopholes and tinkering with existing legislation). 

This law now makes it “an unlawful employment practice for an employer to include a statement in various employment materials that an applicant must have a driver’s license unless the employer reasonably expects the duties of the position to require driving and the employer reasonably believes that satisfying that job function using an alternative form of transportation would not be comparable in travel time or cost to the employer, as specified.” [1]

This transitions us seamlessly into the two-part test created under this new law! 

The New Two-Part Test

As of January 1, 2025, employers must meet the following two-part test before they can include a statement in a job advertisement, posting, application or any other material requiring that an applicant have a driver’s license:

1. The employer must reasonably expect driving to be one of the job functions for the position; and
2. The employer must reasonably believe that satisfying the job function using an alternative form of transportation would not be comparable in travel time or cost to the business.

Importantly, this new law does not define when it is “reasonable” to expect that driving be one of the job functions, but in general, reasonableness does take into consideration what an objective person would believe (not what you, the subjective employer, believes). Because of this, if you’re unsure if your expectation is reasonable, it’s a great idea to reach out to your attorney. They are trained to put aside their personal biases and give you an honest professional assessment, so this is usually a better option than polling managers, co-owners, etc.

You’ll note that the rule does not require that driving be one of the major or essential functions of the job. We must admit that we’re a bit surprised by this omission! This is likely an area that will either be updated in the future through the legislature or that we will see litigation around. Our suggestion would be to tread lightly and only require a driver’s license for major or essential functions, even if the law as written is ultimately more flexible. This conservative approach is protective, and can help you avoid being the test case in litigation!

The second portion of this test is interesting, because it takes into account alternative forms of transportation. California is a largely car dependent state, but some cities have robust public transportation systems (San Diego, Los Angeles, and San Francisco are some of the obvious examples) and many people within those locales may not have driver’s licenses because of this. It doesn’t mean they can’t still do their jobs without a car! This portion asks the important question of, “is a car necessary? Can the job be accomplished by bike, bus, trolley/light rail, taxi, etc.?” If the job can be done in roughly the same time and at the same cost as would be the case with travel via personal car, then the employer should not require a driver’s license from applicants. 

To use this test, it’s essential that the employer create a complete job description for each position. If you’re unsure how to do that, check out our existing lesson and/or speak to an attorney. Once you have your job description written out (which will become part of the personnel file for whoever you hire for the job), evaluate it against the test above. If it doesn’t meet the test, you cannot ask for the driver’s license and you should remove it from the job description, application, or any other area where it’s mentioned. 

The law doesn’t address how this affects existing employees, but it would still be a good idea to review your handbooks or other policies to ensure there are no references to driver’s license requirements in these, before you give them to any new employees. Remember, the law is broad and says that this requirement cannot be included in “other materials,” which may include an employee handbook!

Lastly, if you (the person reading this) are not going to be the only person involved in the hiring process, it’s imperative that anyone else helping you (HR person, managers, etc.) be aware of this change as well. Feel free to PDF this lesson and share it with them! They should not request a driver’s license even verbally if the job description does not pass this two-part test. 

Possible Penalties

This new law falls under the Fair Employment and Housing Act (“FEHA”), which means that a violation would be considered an unlawful employment practice. Typically under FEHA, unlawful employment practice can lead to monetary consequences such as legal damages (either compensatory or punitive), attorney’s fees payable to the plaintiff, or other costs. Violations can also lead to an injunction (legal term that means “stops a party from doing something,” like continuing to hire new employees) or specific performance (legal term that means “requires a party to do something,” like re-evaluate an applicant’s application).

In our opinion, this is a pretty easy pitfall to avoid if you act proactively, so be sure to follow the next steps highlighted above and speak to an attorney if you have any questions!

This Lesson's Sources:

[1] Senate Bill No. 1100