A background check is a process that a person or entity uses to verify that a specific individual is in fact who they claim to be. Background checks can provide the checker with information about the individual’s employment history, education, criminal record, financial standing, and many other items that can be used to expose their true identity.
You may already be familiar with what a background check is if you have ever looked for a new apartment, applied for a job, purchased a gun, or ran into some trouble with law enforcement. In other words, all sorts of people and companies may have you undergo a background check to confirm some type of information about you.
For example, an employer may conduct a criminal background check on a prospective employee. This is especially true when a job requires special duties, such as a bank teller who handles sensitive matters and money all day, or a government worker who needs a certain level of security clearance.
What Are the Rules for Employment Background Checks in California?
Employers who conduct background checks in California are required to abide by various federal, state, and local rules. Some significant regulations that apply to both standard and California criminal record background checks include the following:
- Fair Credit Reporting Act (“FCRA”): The FCRA is a federal law that regulates how consumer reporting agencies can gather information about individuals and share it with interested parties. Under the Act, employers must give a job applicant written notice that a background check may be required. The Act also gives job applicants the right to obtain a copy of their background check report and to sue for inaccuracies.
- Consumer Credit Reporting Agencies Act (“CCRAA”): This is a federal law that has been codified into a California state law. Basically, the law requires that an employer: inform a job applicant before running a credit report check, tell them who is issuing the report, allow them to obtain a free copy of it, and warn them that the report could affect the employer’s hiring decision.
- Investigative Consumer Reporting Agencies Act (“ICRAA”): The ICRAA is another federal law that limits how and when an employer may generate background check reports. Employers must abide by certain requirements before they can start to investigate. The ICRAA also provides a section on complying with the seven-year rule.
- California Information Privacy Act (“CIPA”): CIPA is a state law that focuses on employee privacy protections. CIPA requires employers who conduct their own background checks to place a checkbox on the job application or written notice that gives a job applicant the option to obtain a free copy of their report. Employers who hire third parties to run background checks must provide a written notice that states the scope and nature of the background check.
- Various Sections of the California Civil and Labor Codes: There are many different provisions that employers must abide by under California state laws. For example, a section of the California Labor Code prohibits both private and public employers from asking a job applicant about certain aspects of their criminal history, such as if they have any criminal charges that did not end in a conviction or about sealed convictions.
- Juvenile records, non-felony convictions for possession of marijuana that are two years or older, and convictions that have since been expunged are also off limits to employers.
- Ban the Box laws: “Ban the box” laws were enacted with the passing of the California Fair Chance Act. Under these laws, an employer may ask about a job applicant’s criminal record only after they have determined that the applicant meets the minimum job requirements. However, Ban the Box laws only apply to employers in the public sector (e.g., government agencies, public transit authorities, and public school employers).
- Local rules: Some counties and cities in California have their own local versions of fair hiring and ban the box laws. Since local rules vary widely by jurisdiction, an individual should contact local counsel for more information on their specific requirements and protections.
Lastly, it should be noted that the above laws are frequently subject to change and may contain additional requirements. To determine whether an employer is in compliance or an employee is receiving adequate protection under the law, it may be in an individual’s best interest to consult a local employment lawyer for further legal advice regarding background checks and criminal records.
What is California’s 7-Year Rule Regarding Background Checks?
In general, the guidelines of the federal FCRA apply to criminal background checks. Specifically, this law provides that consumer reporting agencies are only permitted to report certain adverse information about individuals for no longer than seven years. Thus, if an arrest record was entered into the system over ten years ago, then it should not appear on an individual’s background check report.
There is also a provision in the FCRA that says the seven-year rule only applies to workers who make less than $75,000. This means that any employees who earn more than $75,000 will be subject to a background check that extends farther back than seven years.
Some states, like California, have taken it upon themselves to create laws that limit the type of information that consumer reporting agencies can provide to employers. For instance, California has a statute that says a criminal conviction can only appear on a background check report if it has been seven years or less since it occurred.
In 2018, California’s Supreme Court issued an opinion on a case that concerned certain employer background checks. In its ruling, the court stated that both the CCRAA and the ICRAA applied to some types of background checks. This means that employers who qualify under these Acts must now comply with both laws, as well as all other relevant federal and state regulations.
In regard to the seven-year rule, an employer who must abide by the regulations set out in the ICRAA can only obtain certain information when conducting a background check on an employee. Specifically, the ICRAA limits requests for conviction information to seven years. Unlike the FCRA, however, it applies to all employees regardless of how much their potential salary may be.
Although it is really the consumer reporting agencies who must comply with this rule, employers must be aware of what information they need to ignore if it is provided to them in error.
What Are the Consequences for Employers Who Violate These New Rules?
The potential legal consequences and punishments for employers who violate California’s new background check laws are not automatically applied. Instead, the person whose background is being investigated will need to bring charges against the employer. A person who decides to pursue legal recourse against an employer who looks into their background in an unlawful manner, may be able to do the following:
- File a lawsuit against the employer for actual damages, which includes both legal costs and reasonable attorneys’ fees.
- If an employer intentionally violated these laws, however, then the individual may be entitled to collect a treble damages award, along with standard legal costs and reasonable attorneys’ fees.
While this may not seem like a harsh enough punishment for someone who violated a person’s privacy, these fines can actually rack up and become quite costly for an employer.
For example, an employer who is required to pay actual damages may be ordered to pay up to $10,000 per violation. Some courts may also issue punitive damages awards, which can result in an amount that is ten times the number provided in the state statute for actual damages.
In addition, there are various punishments and penalties for each background check law listed above. For instance, a California employer who violates the CCRAA can be sued by current and prospective employees for actual damages or penalties for up to $5,000. On the other hand, an employer who willfully violates the FCRA can be sued by current and prospective employees for actual damages or penalties ranging from $100 to $1,000.
Finally, California has also amended their Penal Code to include such violations. Currently, an employer who is found to have intentionally conducted an illegal background check can now be charged with a misdemeanor offense. The penalties for a misdemeanor offense include fines of up to $1,000 maximum and potentially having to serve county jail time for no longer than a year.
Seek Legal Advice
There are dozens of laws and requirements that apply to background checks in California. Changes to background check laws and their requirements can happen often and quickly. Thus, if you are an employer in California and need assistance with complying with these various regulations, you should contact a California employment lawyer for further guidance.
Your lawyer can walk you through the intricate provisions of each law and can explain which laws you must comply with and how to do so. If you are being sued for violating a background check law, your lawyer can also help you prepare a defense against the claim and can represent you in court.
Additionally, if you are a prospective employee and believe that an employer has conducted an unlawful background check, you should contact a local employment lawyer immediately. Your lawyer can ensure that your rights are being protected under the law and can assist you in pursuing legal action against your employer if they determine that your employer has violated background check laws and their requirements.