Under CA Labor Code 432.7, California employers cannot ask about an applicant’s previous arrests that did not result in convictions, sealed or dismissed convictions, or any completed diversions.
However, it is not illegal for employers to ask about pending criminal charges, and they might show up on California background checks.
As a California Employer, How Can I Stay Compliant?
Complying with laws like the Federal Fair Credit Reporting Act is critical, but even that is not enough to run a compliant screening program in California.
The penalties for violating California background check laws are severe. In some cases, employers can be required to pay actual damages, or up to $10,000 per violation, in addition to the applicant’s attorney’s fees and costs. Some courts may require employers to pay punitive damages, as well, which can be as much as ten times the amount of actual statutory damages.
With that in mind, here are four tips to remain compliant on background check laws in California, and avoid expensive fees:
1. Wait to Inquire About Criminal History
To protect yourself and your company, wait to inquire about an applicant’s criminal history until after you have issued a conditional offer of employment. This includes asking applicants if they have ever been convicted of a crime, ordering a background check, or making other inquiries into an applicant’s criminal history.
2. Conduct Individualized Assessments
If an applicant has prior convictions, conduct an individualized assessment to determine whether those convictions have a direct, adverse relationship with the job’s specific duties. If so, this would justify the denial of the candidate’s application.
3. Notify the Applicant of Potential Adverse Action
If you intend to take adverse action based on the findings of a criminal background check, you must notify the applicant.
Your notice must include the following elements:
- An identification of the conviction.
- A copy of the conviction history report – regardless of whether you prepared it internally or had it developed by a third-party company.
- Notification of the applicant’s deadline to provide clarifying information for the background check, such as evidence of inaccuracy, or rehabilitation documentation.
4. Provide a Final Adverse Action Notice
If you ultimately proceed with adverse action, you must notify the applicant of your final decision. You must also make the applicant aware of their right to challenge the decision, request reconsideration, and file a complaint with the Department of Fair Employment and Housing.
While complying with California background check laws can be challenging, following these guidelines can help you avoid issues. Keep in mind that, in addition to federal and state laws, Los Angeles and San Francisco have enacted their own versions of California “Ban the Box” laws.
Los Angeles, for example, passed an ordinance that applies to all city businesses with ten or more employees, as well as all city contractors. The law states that employers cannot investigate an applicant’s criminal history until after they’ve issued a conditional offer of employment. Additionally, employers must conduct an individual assessment of the applicant’s criminal background as it relates to the responsibilities and duties of the open position.
Can I Consider an Applicant’s Criminal Background During the Hiring Process?
Yes – with some exceptions. While employers are permitted to run background checks on applicants, they must adhere to California labor laws regulating when and how to conduct said background checks.
Additionally, California law requires employers to disclose certain information after they run a background check. Employers who want to remain compliant must familiarize themselves with these regulations and how to abide by them.
Sample California Background Check Policy
It’s important to have a background check policy in place to ensure consistency in your testing program and avoid violating the law. When you have a strong policy in place, you can ensure that your background screens comply with all relevant laws.
Here’s a sample California background check policy to use as a reference.
[COMPANY NAME] Background Check Policy
The goal of [COMPANY NAME] is to hire and promote the most highly qualified candidates. Background checks are an integral part of the hiring and promotion processes. When [COMPANY NAME] needs to conduct a background check to make hiring and other employment decisions, the background check will be conducted and the information revealed will be used in compliance will all relevant local, state, and federal laws.
Scope of Background Checks
All applicants and employees will undergo background checks during the hiring process or when the company makes other employment decisions.
Background Checks[COMPANY NAME]’s background checks are conducted in a manner that complies with all relevant state and federal laws, including the Fair Credit Reporting Act (FCRA), the California Consumer Credit Reporting Agencies Act (CCRAA), and the California Investigative Consumer Reporting Agencies Act (ICRAA) as follows:
Before applicants or employees will undergo background checks, [COMPANY NAME] will provide advanced written notices of its intent to conduct background checks and will provide the applicants and employees with an opportunity to receive a free copy of any reports. Background checks will not be conducted until the company obtains signed authorization from the employees and applicants granting their consent for the company to conduct background checks.
Consumer Credit Reports
Consumer credit reports are obtained by [COMPANY NAME] under limited circumstances but are not in most cases. For example, the company might request a consumer credit report for an applicant or an employee who is being considered for a supervisory position in which the job duties include having access to the company’s credit card account or bank account information. If the company needs to request a consumer credit report, it always follows the relevant state and federal laws.
Confidentiality and Use of Information[COMPANY NAME] will only use the information received from background checks to make employment decisions. All background check information obtained will be maintained confidentially and in compliance with all laws. Background check reports can only be accessed or reviewed by designated and authorized individuals who have the approval of Human Resources. Information from background check reports will not be disseminated to the public or other employees.
To receive more information about [COMPANY NAME]’s background check policy, contact Human Resources.
How Far Back do Employment Background Checks go in California?
In California, criminal convictions can only be reported for seven years. Under California civil code (The Investigative Consumer Reporting Agencies Act), any misdemeanors, complaints, indictments, arrests, and convictions older than that cannot be reported on background checks. Full pardons, expungements and arrests that did not lead to a conviction, meanwhile, cannot be reported at all.
According to California law (Article 2 of Civil Code 1427-3237), employers must save all employment background checks for a minimum of two years. The code states:
Every investigative consumer reporting agency that provides an investigative consumer report to a person other than the consumer shall make a copy of that report available, upon request and proper identification, to the consumer for at least two years after the date that the report is provided to the other person.
How Long Does a Background Check Take in California?
The method you choose for completing pre-employment background checks will affect how long it will take before you can expect to receive the results. When you use the fingerprint background check from the California Department of Justice, the results can take seven days or longer, not including the time it takes for your applicant to get his or her fingerprints scanned by a Live Scan operator.
If you opt to search local court records yourself, it can take a very long time. This type of process can take weeks under normal circumstances. The COVID-19 pandemic might make it take even longer because of court closures.
Many can return background check reports very quickly in most cases, depending on the information you request. In some cases, you can receive your reports within a few hours or up to two days.
Because of delays caused by the pandemic caused by court and agency closures, our reports might be delayed. We will communicate with you about any potential delays so that you know what to expect.
Properly conducted pre-employment background checks can protect your business and its reputation. When you conduct a background check on an applicant, you must make sure that you follow all of the applicable laws.
Background check providers work to remain up to date with changes to the laws as they occur. Their team members should be thoroughly trained and know the requirements they must follow when they conduct pre-employment background checks and send reports to our clients.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.