If your company is conducting background checks in California, it’s important you are aware of the many rules that must be followed. There are specific California laws that pertain to credit reports, the use of criminal records, verbiage within an authorization form, and there are the rules as to what information you are NOT permitted to inquire about in the initial on-boarding or background screening process.
Outside of the Federal Fair Credit Reporting Act, (FCRA) CA has its own laws governing the use of Investigate Consumer Reports as outlined in CA Civil Code 1786.
- An employer can’t ask about a misdemeanor marijuana conviction more than 2 years old. It’s important to note there is a significant difference between a misdemeanor and a felony conviction as this could involve a more serious offense such as drug trafficking. There are exceptions in the healthcare industry if the position includes access to medications.
- An employer cannot ask about an arrest that did not result in a conviction. This however does not apply to pending cases where there has not been a final outcome determined.
- Employers cannot use criminal conviction information that antedates the California Background Check by more than seven years. However, if an individual is on a mandatory parole for a period of time, this can extend the time period by which an employer can use negative information against a candidate.
- In most cases employers in California cannot use consumer credit reports for the purpose of employment background checks.
There are eight different exceptions to this law depending on the position, and whether the candidate will have access to certain financial information.
- Should your organization, based on the results of the employment screening report make a decision not to hire an applicant, you must supply a pre-adverse action notice. This allows the applicant to dispute any information he or she may find inaccurate. Generally the applicant should be given five business days. Then a final adverse action notice must be sent in the event the applicant did not adequately dispute the findings.
- Authorization must be provided by the applicant prior to conducting a background check. Within the consent form you must clearly state the purpose and intended use, which includes terms such as character, general reputation, and mode of living. There must be a checkbox allowing the applicant the opportunity to request a copy of the completed background check. The full name, address, and phone number of the consumer reporting agency should be provided. Should the applicant request a copy, this must be mailed within 3 business days.
- A Notice Regarding Background Investigation pursuant to California law must also be provided to the applicant. This is a disclosure form and not something that must be signed.
Your background check policy and recruiting procedures should be followed consistently by your HR personnel. It’s not something you be should be careless about so make sure you have a background check agency that understands your state requirements.