Are Background Checks Legal Under California Law?
The law allows a potential employer to perform background checks before employing particular workers in California. However, when performing them for employment purposes, California law imposes many limits and requirements on employers.
Below are some of the California employment background check laws:
- Anti-Discrimination Laws
Employers in California are not permitted by federal or state law to discriminate against candidates on the following grounds:
- Sexual preference,
Employers in California may face legal repercussions if they have an internal policy that excludes all job applicants with criminal records from consideration. The cause of this is that Latinos and African Americans experience more arrests and convictions than other racial groups. This indicates that a general exclusionary policy can come off as discriminatory.
- The Fair Credit Reporting Act (FCRA)
Employers and applicants are protected by the Fair Credit Reporting Act (FCRA). In particular, the FCRA supports fairness, accuracy, and privacy for the data kept in consumer reporting agency files.
The national benchmark for employment background checks is the FCRA. It ensures that candidates have the right to a copy of the background investigation. Additionally, it enables the applicant to bring a complaint if the background check yields false or insufficient results.
Businesses in California, like all employers, are obligated to abide by FCRA rules. When a hiring employer uses background checks done by third-party sources, federal FCRA regulations now apply.
If a third party performs a background check, the Employer must:
- Inform the applicant in writing that a background investigation and report are necessary.
- Use an authorization form to get the applicant’s consent to run a background investigation.
Also, if the job needs the employer to gather medical data, ensure you have the proper authorization. The employer must give a warning if the employer plans to interview the applicant’s friends or acquaintances about their “character, general reputation, personal qualities, or manner of living” or if they will act as character references for the application.
This procedure is known as an “investigative consumer report” under the FCRA. If the results of a background check are used to make hiring, the employer must inform the applicant. However, the FCRA regulations do not apply if an employer independently conducts a background check report.
- The California Information Privacy Act (CIPA)
The baseline employee privacy rights outlined by the FCRA are expanded by the California Information Privacy Act (CIPA) per California Civil Code 1785 et seq.
In contrast to employers who decide to perform checks themselves, CIPA specifies stringent criteria for employers who use third-party firms to carry out their background checks. Employers who conduct their investigations must comply with CIPA requirements and offer candidates the chance to “opt-in” to receive a copy of their background check results.
Either the written notice of the background check required by the FCRA or the job application must contain the checkbox. If the candidate chooses to participate, they must get a report copy no later than three days after the employer receives it.
The act mandates that the employer provide a clear notice if they contract with a third-party agency to perform background checks. The “nature and scope” of the background check must be disclosed in this written notice per California Civil Code 1786.16(2)(B)(v).
If the third-party background check business hired by the employer also wants to speak with the applicant’s references, the employer must:
- Describe the investigation’s goal.
- Provide the applicant with the investigation agency’s contact details.
- List the applicant’s rights to access and copy any reports made about them.
- Give the applicant the option to request a copy by checking a box, and the copy must be sent to the applicant within three days of the employer receiving the finished report.
However, one noteworthy exception exists. CIPA waives the requirement to give notice and get the applicant’s approval for the background check if the employer is doing it because they believe the applicant has violated the law.
- California’s Ban The Box Law
California’s public sector employers are the only ones covered by Ban the Box statutes. According to these statutes, a public employer can only check an applicant’s criminal history after confirming that the applicant satisfies the position’s basic qualifications.
The passing of The California Transparency Act made “Ban the Box,” and The California Fair Chance Act, also known as AB 1008, aims to give applicants with criminal records an equal chance to move on in the application procedure.
The Fair Chance Act essentially mandates that an employer consider an applicant’s qualifications before doing a criminal background check. Employers in California are not allowed to inquire about felony convictions or criminal records before making an employment offer.
- The Los Angeles and San Francisco fair Chance Ordinances
Before the ban on the box law, the Fair Chance Act was approved in San Francisco and Los Angeles. TheFair Chance Act offers protections that resemble those in Ban the Box law.
They provide a “fair chance” due to the following:
- If a company decides to reject your job application or take adverse action because of your criminal background,
- You could still prove why employment is still appropriate.
Los Angeles has this law because the Ban the Box statute gives applicants more protection. So Los Angeles has modified their laws in line with the ban-the-box law.
Contact a competent labor lawyer if, after applying for an employment position, the potential employer does not follow California law’s procedures for performing background checks.