California Background Check
Background check is an important element of the process of hiring. But, the rules that govern background checks can be difficult to comprehend. This is particularly true for background checks in California background check that requires special factors.
Have you ever heard that one out of three Californians has a criminal background?
This means that employers are nearly certain to come across prior convictions, arrests, and other issues at some point during their recruitment efforts.
To assist you in navigating the process of background checks for employment to ensure you are protected, we've created this comprehensive guide, which covers rules, laws and procedures that you have to be aware of.
Let's get started.
California Background Check Laws 2021
Here's a summary of the various state background check regulations, as they apply to California employers:
The Fair Credit Reporting Act
The Fair Credit Reporting Act, also known as FCRA is designed to protect both applicants and employers. Particularly the FCRA ensures accuracy, fairness and the privacy of information in consumer reports agency file.
The FCRA is the standard in the nation for background checks on employees. The FCRA guarantees applicants the right to get an original copy of their background check. The applicant is also able to make a claim in the event that it is found that the background check contains inaccurate or insufficient details.
California employers, just like all employers, must comply with FCRA guidelines. The current federal FCRA guidelines are applicable for hiring companies that use background checks conducted by third-party service providers.
In these instances the employer is required to do this:
Give the applicant written notification that the applicant will be required to undergo a background check and report may be required.
Request the applicant's permission to conduct an background check via an authorization form.
Request a special permission when the job needs the collection of medical records.
Inform the applicant when the employer is planning to refer to the applicant's family, friends, neighbors or acquaintances as character references or if the employer will conduct an interview with them regarding the applicant's "character generally repute, traits or way of life." This is what the FCRA refers to this as an "investigative consumer report."
Notify the applicant in the event that the information in the background check is used to determine a negative hiring decision.
If an employer creates an employee background check report on its own, FCRA provisions do not apply.
In a 2018 California Supreme Court ruling known as Connor v. First Student, Inc. Both the Investigative Consumer Reporting Act (ICRAA) as well as the Consumer Credit Reporting Agencies Act (CCRAA) have been extended to certain background checks for employers.
Due to this employers might be required to adhere to the laws in both states as well as ensuring their background checks comply with the relevant state and federal laws.
Here's what you should be aware of regarding this law, the ICRAA as well as the CCRAA.
The ICRAA (Investigative Consumer Reporting Agency Act) includes specific requirements for notification with reporting restrictions and many more.
The ICRAA has several clauses that are more restrictive in comparison to the FCRA. The ICRAA overrules the FCRA in any area in which its laws are more restrictive. The section 1786.18 in the ICRAA is an example. It permits only the filing of criminal convictions as well as open cases. The ICRAA also sets out restrictions on the manner and time employers can create background check reports.
As per the section 1786.16 (2)(B)(iv):
Anyone who is referred to in the subdivision (d) of Section 1786.12 cannot solicit or cause the preparation of an investigative consumer report until the following conditions are satisfied:
(2) When,, at any point, an investigational consumer report is required for reasons not limited to suspicion of misconduct or wrongdoing in the course to the inquiry, then the individual who is seeking the report can obtain the report, or even cause it to be prepared in only the case that each of the following conditions conditions are met:
(B) the person who procures or causes the report created makes a clear and prominent written notice to the purchaser at any point prior to when the report is purchased or is produced in a document that only contains the information, which:
(iv) Determines the address, name, and phone number of the consumer reporting agency who is conducting this investigation.
In addition, ICRAA requires adherence to the seven-year rule. It "limits the information on convictions to seven years after the date of the disposition release, release, or parole...regardless of the person's projected income."
This is vital since more general limitations of 7 years under FCRA only are available to employees earning less than $75,000.00 per year.
The ICRAA further clarifies (in section 1786.29) that the investigative consumer reporting agencies are required to provide an array of warnings on the very first page of any investigative consumer reports they create. In addition, the law stipulates that reporting agencies must include a statement (in 12 point boldface font) of the fact that their report is not a guarantee of the truthfulness or accuracy of the information it contains. The notice also has to state that the information contained in the report is derived from public records, as well as that theft of identity or criminal activity could affect the accuracy of results.
The ICRAA provides additional requirements for investigational agency for consumer reports in Section 1786.22 that employers that are committed to compliance must read thoroughly.
The CCRAA is a companion to the ICRAA in many ways, but differs with regard to credit reports. As per CCRAA Section 1785.20.5 credit reports as well as consumer reports that are investigated are considered background reports.
This section provides the following:
"The information to be provided to users and the person who's the subject is provided promptly and without cost to the person who is subject."
It is the California Information Privacy Act, or CIPA, (Cal. Civil Code SSSS 1785 et seq.) includes the minimum privacy protections outlined in the FCRA and extends the protections provided by the FCRA.
Similar to FCRA, CIPA establishes strict standards for employers who employ third-party companies to conduct background checks, in contrast to employers who opt to conduct the checks themselves. If employers conduct their own background checks, CIPA requires the employer to offer applicants the possibility for them to "opt-in" to be provided with the report. background check reports.
The checkbox should be included on the application form or in the notice to applicants that accompanies the background check, which is required by FCRA. If an applicant chooses to opt-in the background check, they must be provided with a copy of the report within three days from when the employer has received the report.
If an employer decides to engage a third-party organization to run background checks CIPA obliges the company to give a "clear and noticeable" notice. This notice should be written and be specific about the "nature and the scope" that will be covered by the background check [Cal. Civil Code SS 1786.16(2)(B)(v)].
If the external third party background check company also intends to conduct an interview with the applicant's references The company must
Explain the motives behind the investigation.
Contact the applicant to the investigating agency.
The applicant should be provided with a description of their rights and read any reports on them.
Give the applicant an option to check for if they wish to receive the report, which should be given by the candidate within 3 days after receiving the report.
One significant exception. If an employer conducts an background check because they suspect that the applicant is involved in illegal conduct or misconduct, CIPA waives the requirement to notify the applicant and get permission from the applicant to conduct conducting the background check.
CA Labor Code 432.7
As per CA Labor Code 432.7, California employers, whether public and private employers are not permitted from questioning job applicants about certain aspects of their criminal record, such as the following:
Criminal charges that didn't lead to an indictment.
Diversion programs for post-trial or pre-trial.
Convictions sealed or dismissed.
It is also not permitted for companies to make hiring decisions based on the criteria mentioned above. California employers are however, able to inquire about any pending criminal charges.
Removing Birthdates from Court Records
California employers should be aware what the court's ruling on All of Us or None of Us v. Hamrick, Cal. Ct. App., 4th Appellate Dist., 1st Div. No. D076524 (2021). D076524 (2021). Court of Appeal reversed the trial court's ruling that clerks at court don't need to remove dates of birth or driver's license numbers from court records.
The lower court was notified that it had received the case the court decided in favor of the plaintiffs, stating that under law, courts have to erase birthdates and driver's license numbers from court records.
The California Supreme Court denied a review of the decision. The courts now be required to remove every personal identifier from the criminal court records, apart from names.
This change is going to affect background checks for job applicants in the state, as consumer reporting agencies have to rely on at least two identifiers to prove the authenticity of a criminal record to the person applying. Criminal history records that are not verified cannot be disclosed.
The change is likely to make background checks for employment more complicated, The Koleman Group LLC has already adjusted its procedures and methods to accommodate this decision. We'll be able provide reliable criminal history information about candidates who resided or worked in California for employers, despite the change.
Ban the Box and Fair Hiring Laws
In the present, Ban the Box laws only are applicable to employers in the public sector in California. According to the law, public sector employers are allowed to inquire about the criminal record of an applicant following the time they've determined that the applicant is in compliance with the minimum requirements necessary for the job they are seeking to fill.
Along with other provisions, "Ban the Box" became law in California after the passage of The
The California Fair Chance Act AB1008, that is designed to give applicants with criminal records the same chance to progress in the process of applying for jobs.
The basic idea is that in essence, Fair Chance Act requires an employer to assess the qualifications of an applicant prior to conducting an identity background check. The law prevents California employers from requesting information about criminal history or convictions in felony cases prior to the time they make an offer to hire.
What does an California Background Check Tell Us?
Employers who are located in California are able to request background checks prior to hiring from The Koleman Group LLC that contain the specific information they require.
However, employers typically will request a variety of common kinds of information regarding the background of prospective employees, including details about criminal history, previous employment history, academic documents, and other credentials. Based on the nature of the job and the specific job, additional types of information may be asked for.
In the event that one of your applicants has a criminal history You may find the following kinds of information that you can find on an employment background check in California:
Criminal charges or charges
Date of filing
The decision of the court
A single of the crucial items you can request in the pre-employment background check is employment verification.
Checking your applicants' claims regarding their employment history can aid you in ensuring that you employ trustworthy workers and stop potential negligent hiring claims. It can also help you determine whether they have embellished their experience levels or made false claims.
If you are requesting verification of employment When you request employment verification, your background check will show you the dates that the candidate was employed at each position as well as any other positions the candidate held.
Verification of education
If the job you are seeking candidates requires a degree, certificate or other educational qualification, confirming the academic information of your applicants could be vital.
Certain candidates might claim to have degrees they've not earned. Some may purchase their degrees online from companies who don't require them to enroll in any courses.
By confirming your education You can confirm the schools your students attended, the datesthey attended, as well as any certificates or degrees they received.
If the position you're applying for requires candidates to possess certain professional qualifications or licenses for your position, you can conduct a California background check prior to hiring background check can include verification of their qualifications.
The verification process will allow you to verify that your employees possess the necessary qualifications to perform their job and can help your company stay clear of hiring fraud claims.
What is the best way to get an Criminal Background check for California?
The California Department of Justice is mandated to manage a statewide repository of criminal records. Before you can access the criminal record details for applicants, your company has to first register as an authorized applicant through the DOJ.
After the request is accepted, your business must wait until they get approval. In the meantime, you'll have to get written permission from your applicants using an appropriate form that is provided by your department. Your applicants must have their fingerprints taken by the live Scan operator.
The cost is $32. and is not inclusive of the fee for rolling fingerprints that are charged from the Live Scan operator.
Finding background information through the State does not give you all the details you require. The information you get will be criminal records if there are. The checks will not provide details about the education or employment history of applicants. They will not give you complete information about their background.
State criminal records may not give you details about convictions that took place in other states.
Some employers are attempting to find court records for every state where the applicant has resided. This is a waste of time for your HR department, and can be very labor-intensive.
The best solution is to obtain background checks before you start your job through a trusted company like The Koleman Group LLC. If you choose to work through us, we will be able to select the kinds of information you require instead of receiving random results.
You can also rest assured that your background checks prior to hiring will be in compliance with all the federal and state laws to ensure that you are not relying on the information to make employment decisions that could put you into trouble.
As an California Employer, What can I Ensure Compliance?
Conforming to laws such as that of Federal Fair Credit Reporting Act is essential, but it isn't enough to ensure a legal screening system in California.
The penalties for breaking California background check law are extremely severe. In certain instances employers may be required to pay damages in actual dollars up to $10,000 for each violation, which is in addition to the attorney's fees of the applicant and other costs. Certain courts might demand the employer to compensate punitive damages in addition, which could be up to 10 more than the value of legal damages.
In this regard there are four suggestions to stay in compliance with background check laws in California and avoid paying expensive charges:
1. Be patient and do not ask questions about Criminal History
To safeguard you and your business Be sure to not ask about the criminal history of an applicant up to after you've issued an offer to work conditionally. It is also a good idea to ask applicants if they've ever been found guilty of a crime, requesting an background check, or making other inquiries about the applicant's criminal background.
2. Conduct Assessments on an Individual Basis
If an applicant has previous convictions, perform an individual review to determine if the convictions are in direct negative connection to the specific duties of the job. If this is the case, it could justify the denial of an applicant's application.
3. Inform the applicant of the possibility of adverse action
If you plan to decide to take a negative action in response to the results of the police background check, you must inform the person applying.
Your notice must contain these elements:
A proof of conviction.
A copy of your conviction history report , regardless of whether or not you created the report internally or prepared by a third-party firm.
Notification of the deadline for applicants to provide clarification information for background checks. background check, such as the evidence of inaccurateness or rehabilitation documents.
4. Give a Final Adverse Action Notice
If you choose to proceed with an negative action and you decide to take adverse action, you must inform an applicant in writing of your decision. It is also important to inform the applicant of their rights to contest the decision, ask for reconsideration and file complaints before the Department of Fair Employment and Housing.
While ensuring compliance to California background check laws can be a challenge following these guidelines will assist you in avoiding problems. Remember that in addition to the federal and state law, Los Angeles and San Francisco have adopted their respective variants that are based on California "Ban the Box" laws.
Los Angeles, for example has passed an ordinance which applies to any city-owned business with at least ten employees in addition to the city's contractors in general. The law says that employers can't examine a candidate's criminal background until after they've given an employment contract with a conditional offer. Employers must also perform an independent assessment of the applicant's criminal history as it pertains to the duties and duties of the vacant job.
Do I have to consider the criminal background of an applicant during the process of hiring?
Yes, with a few exceptions. Although employers are allowed to conduct background checks on potential employees but they must abide by California labor laws that govern the timing and what method to conduct these background checks.
Furthermore, California law requires employers to provide certain details after they have conducted the background check. Employers that want to remain in compliance must be aware of the regulations and know how to comply with these regulations.
How long back Do Employment Background Checks run within California?
In California, criminal convictions are only recorded for seven year. Under California civil code (The Investigative Consumer Reporting Act) all misdemeanors, complaints, indictments, or arrests or convictions earlier than seven years are not included in background checks. Pardons, expungements, and arrests that do not cause a conviction however, are not reported in any way.
In accordance with California laws (Article 2. Civil Code 1427-3237), employers are required to keep all background checks for at least 2 years. The law states:
Every consumer reporting agency that gives an investigational consumer report to anyone other than the consumer has to provide a copy of the report, upon request and with the proper identification with the consumer, for a minimum of two years following the date the report is given to another person.
What is the length of time a Background Check take for California?
The method you decide to use to complete your background checks before you hire will impact the length of time it takes before you will receive the results. If you choose to use your fingerprint background check from the California Department of Justice The results could take up to seven days or more and that's not counting the time it takes your candidate to get their fingerprints taken by an Live Scan operator.
If you decide to look up local court records by yourself the process can take quite a long duration. This process could take weeks in normal conditions. The COVID-19 pandemic could cause it to take longer due to court closures.
In The Koleman Group LLC, we are able to provide background check reports very quickly most of the time, based on the information requested. In certain cases you may get your report within the space of a few hours or even up 2 days.
Due to the delays due to the pandemic triggered by agency and court closures Our reports could be delayed. We will inform the public about any delays so that you are aware of what to expect.
The Koleman Group LLC Your trusted partner for Fast and Accurate Compliant California Background checks
A thorough background check prior to hiring will protect your company and its image. If you conduct an background check on an applicant it is essential to ensure that you adhere to all the laws that apply to you.
We at The Koleman Group LLC, we strive to stay current with the latest modifications to laws that are made. Our team members are fully trained and understand the regulations they must adhere to when conducting pre-employment background checks and provide reports to our clients.
For more information about our background checks for pre-employment and how we can assist you, call The Koleman Group LLC today for a no-obligation free consultation.
Disclaimer: The materials provided on this site are intended for educational purposes only and are not legal advice. Contact your lawyer should you have any legal questions regarding your particular practices and the compliance with applicable laws.
Written on 2021-01-31 00:26:20 by larry coleman