Employee Background Checks in California

By VICKY BROWN

So, you found a great candidate – and you want to check their background, just to be on the safe side.  Humm, background check – wondering when and how?  Wondering what a background check is?

On a national level, background checks for employment are managed by the Equal Employment Opportunity Commission or EEOC.  They ride herd on all things discrimination, harassment etc.  And any time you use information from a background check to help you make a decision about hiring someone, well then – you have to comply with federal laws protecting candidates (and employees) from discrimination – and the EEOC enforces those laws.

There are also a fair number of regulations about background checks, at the state, and sometimes local level as well.

I feel like this is a good time to have a chat about online searches.  As an employer – just don’t do them!

I know there are a lot of sites that say you can check someone’s background or record for free.  The downside of many of these sites is that you can’t know for sure that you have the full and accurate picture.  Generally they look at digital public records, while a full background check will include national, state and county level searches as well as verifying identity, social security numbers, and sometimes even education

Full service background checking companies use digital records as well, but they also use actual humans making phone calls, and sometimes even physical records (that means they may even send someone to the county records building).  And finally, when you hire an established background check company, you get the added benefit of knowing they comply with the various background regulations.

Honestly, I have the same concerns about Do It Yourself background checks.  You aren’t an expert in this area (that is – unless you run a background check company).  And the likelihood you’ll either not get all the information you need, or accidentally take the wrong step and violate a regulation, is really high.  Why take the chance?

So what are those regulations

First up – make a conditional offer before you run the background.  The laws are different in different states, but in California, you can’t ask an applicant about some pieces of their criminal history, not even on an employment application.  Things like, criminal charges that didn’t end in a conviction – are off limits.

And since background reports often provide this type of information, it’s better to just make a conditional offer of employment, and avoid the possibility of getting dinged for a violation.

A conditional offer is just like a regular employment offer, except it states that the offer is conditioned on receiving satisfactory references which may include a background check.

Next – there are a whole host of required notices and authorizations that have to happen before you run a background check, and for the most part they have to be stand alone notices.  You can’t bury some language in another form, and you can’t combine the notices.  They get to shine all on their own.

Background checks fall under the Fair Credit Reporting Act – you know, that thing you hope will help you when you’re fighting with your credit card company.  Well, they cover background investigation notices too.  You have to provide the federal and state disclosure notices, rights summaries, and you have to get written consent from the applicant.  Generally your background check company will provide all these documents to you for use with candidates – just a call out – it’s really important that you provide all these notices and get the consent BEFORE you run the background check.

…a lot of employers want to run credit checks, but it’s illegal in California unless you can demonstrate that the job has specific requirements, for example the job is non retail and involves regular access to a customer’s date of birth, social security number and bank or credit card information…

Now, what type of background check will you run.  In addition to criminal checks, you can do employment and education verification, driving record checks, identity verification, credit history checks, and almost everything in between.  The catch is – the information you seek has to be related to the job duties.  So if the job doesn’t require the person to drive on the company’s behalf, then you don’t have a valid reason for pulling a driving record.

And that applies to credit checks as well.  I know a lot of employers want to run credit checks, but it’s illegal in California unless you can demonstrate that the job has specific requirements, for example the job is non retail and involves regular access to a customer’s date of birth, social security number and bank or credit card information – so basically, if they have access to all the info they would need to hijack someone’s identity.  Or if the person will have regular access to cash totaling $10,000 or more.

There are other exemptions, like law enforcement positions and jobs with the Department of Justice, as well as certain managerial jobs.  But for most jobs, it would be best to stay away from credit checks, because most jobs just won’t qualify.

So, you provide all the proper notices, get the consent, run the right background check, get the report back and it turns out, they found a hit on the criminal history.  Now what do you do.

I know what you want to do, you want to say, ‘Oh well – guess we won’t hire that person then.’

Not so fast.

You may have heard about a movement called Ban the Box.  The name stands for getting rid of the checkbox that usually appeared on employment applications, asking if you have a criminal history.  More generally the movement advocates for expanding employment opportunities for people who may have a prior criminal conviction.  A number of states such as Connecticut, Washington D.C., Hawaii, Illinois and – you guessed it, California, have adopted some version of Ban the Box.

Basically, you are not allowed to simply deny someone a job just because they have a criminal history.  You have to really look at both the infraction and the job duty requirements, to figure out if the job will be impacted by the conviction.

You’ll notice I said ‘conviction’.  You generally can’t even consider anything that didn’t result in a conviction, or was referred to a diversion program.  Convictions that have been sealed, dismissed, expunged or eradicated are also off limits.

You’ll have to do an assessment of the findings, and look at

  • the nature and gravity of the offense and conduct
  • the amount of time that has passed
  • and the nature of the job

So, for example, if someone took a joy ride when they were 17, and now they’re 57 with no other criminal history, and the job doesn’t even involve driving?  Well, you wouldn’t have much to stand on in rescinding their job offer.

The process of doing the assessment is really by the numbers; but it includes very specific steps that you have to take in the proper order.

It may seem like a lot of steps, but when you think about it – if you found a great candidate, with a blemish on their criminal record – giving them a lifeline is the right thing to do, and the law.

The preceding is provided for general informational purposes only, and not intended to constitute legal advice.

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