Most job applicants find that when looking for a new job, one condition may be a background check. Background checks don't only apply at the initial time of hiring. They may also be required periodically as a condition to maintain employment. There are many reasons why an employer may subject potential hires and employees alike to background checks.
But the employer's interest must be balanced with the potential new hire and the employee's rights. California acknowledges that while employers have the right to run background checks, there are parameters.
A background check includes information about your past. This often includes credit reports, criminal records, workers' compensation records, references, education records, and driving records.
This isn't all the information that may be disclosed in a background check. Employers can get their hands on a lot of information from your personal records. However, you have rights about how much data they can receive and how they ultimately use this information against you.
California employees and potential employers are protected by many laws. Some include the California Information Privacy Act, the Investigative Consumer Reporting Agencies Act (ICRRA), and the Fair Credit Reporting Act (FCRA).
According to California's ICRRA, you must receive notice before an outside company conducts a background check. That notice must state the purpose of the report, the company's name and address or website, and a summary of your rights.
You have the right to authorize or deny a background check. An employer cannot proceed with a background check without your written permission. You also are entitled to receive a copy of your background check and have the right to dispute incomplete or inaccurate information contained in the report.
An employer cannot run a background check at the interview stage. They must first extend a job offer. The job offer is usually conditional on the applicant passing their background check. "Passing" a background check means that no derogatory information is contained or that the negative information does not impede your ability to perform the job.
When derogatory information comes up in the background report, the employer must follow a procedure before evaluating whether you "pass" or "fail."
Generally, California's Fair Chance Act precludes a California employer from asking questions about your criminal history before they make a job offer. As stated above, a background check cannot be conducted until after a conditional job offer is made.
California's Fair Chance Act took effect on January 1, 2018, and prohibits conviction history requests for employers with more than five employees.
Contrary to belief, a criminal history does not include every interaction you have had with police or other law enforcement agencies. For example, things that should not be on your background check include:
Even when a background check shows a conviction that an employer can consider under the law, the employer cannot rush to judgment and rescind the job offer. You have protections, and the employer must follow a proper evaluation under the California Fair Chance Act. An employer can't just take back the job offer without a process.
Under the law, an employer must weigh the responsibilities of the job against the seriousness of the conviction, the nature of the circumstances, and how old the conviction is. In California, a criminal background check cannot extend beyond seven years.
First, an employer must consider whether the criminal history shows a "direct and adverse relationship with the specific duties of that job." For example, suppose the job is as a bank teller dealing with money, and the potential hire has monetary theft offenses. Then, an employer might have the right to be concerned because it may be directly related to the job duties.
Second, if the employer decides to take renege on the job offer, it must be explained in writing to the applicant. This is known as a pre-adverse action letter. The employer must state a reason why they are rescinding the job offer and provide a copy of the background check they relied on. You then have five days to respond.
Finally, the final adverse action letter must notify the applicant of how to challenge the employer's decision. They must also advise the person about their rights to file a complaint with the Department of Fair Employment and Housing.
If your rights were violated, our employment law attorneys can help you recover damages, which may be up to $10,000 per violation plus attorney fees and costs.
