An employer may want to look into your background, investigate your personal history, before deciding whether to hire you. An employer may want to look into your background before deciding whether to keep you as an employee, especially if no background check was conducted before you were first hired. If this happens to you, know that you have rights. While background checks are legal in California, California law does place limits on the rights of employers to look into your personal history.
Background Check Companies and the Information They Collect
Many employers feel that conducting a background check on a person being considered for a job is an essential part of the hiring process. Many companies provide background checks (screenings) for employers. Depending on the type of screening requested by the employer, background check results may show some or all of the following:
- Criminal history, including felony and misdemeanor convictions and pending cases.
- Credit checks.
- Driving history.
- Education verification.
- Employment verification
The Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) provides a national standard for employment background checks. The FCRA applies whenever a prospective employer uses a third-party provider to perform the background check. Under the FCRA, the employer must:
- Provide you written notice that it is requiring a background check and report.
- Obtain your permission to conduct a background check by having you sign an authorization form.
- Notify you if it intends to interview your neighbors, friends, or associates about your character, reputation, personal characteristics, or mode of living. This is called an “investigative consumer report.”
- Notify you if it decides not to hire you based on information in the background check results.
California Law
The Consumer Credit Reporting Agencies Act, Civil Code Section 1785 et al. (CCRAA), and the Investigative Consumer Reporting Agencies Act (California Civil Code section § 1786.10 – § 1786.40) (ICRAA) make up California’s version of the FCRA. Unlike the FCRA, California law only permits the reporting of criminal conviction information seven years from the date of disposition, release, or parole, regardless of how much the offered job pays.
The Fair Chance Act
Also known as the “Ban the Box” law, the Fair Chance Act (California Government Code section 12952) places limits on what public and private employers with five or more employees can ask before hiring you. Generally, the law prohibits such employers from asking you about your criminal conviction history before making you a job offer. The aim is to make it easier for individuals with criminal conviction histories to find work. Employment enables individuals to support themselves and their families and improves societal connections and mental health. Another benefit of employment is reduced recidivism—the tendency of convicted criminals to commit further crimes (usually offenses similar to those for which they were convicted originally) and end up incarcerated again.
How Does the Fair Chance Act Work?
An employer may not include on a job application questions about your criminal conviction history before offering you a conditional offer of employment.
An employer may not ask you about or consider your criminal conviction history before offering you a conditional offer of employment.
In deciding whether to hire you, an employer may not consider information about arrests that did not result in a conviction, participation in diversion programs you completed when the underlying pending charges have been dismissed, or convictions that have been expunged.
Upon offering you a job, the employer may then conduct a criminal history check on you. However, under the law, the employer is not allowed to withdraw the job offer without conducting an individualized assessment about your criminal conviction history. The employer must consider:
- The nature and severity of your criminal conviction history.
- The length of time that has passed since your conviction.
- Whether the work environment and the essential functions of the job are at odds with your criminal conviction history.
The employer must notify you in writing of any decision not to hire you because of your criminal conviction history and allow you the chance to respond before finalizing its decision not to hire you.
Fired Because of Information Obtained From Your Former Employer
After applying for a job, the employer may decide to contact your former employers, particularly the company listed on your job application as your most recent employer.
If your former employer tells false and damaging statements about you, and the prospective employer decides not to offer you a job because of the false and damaging information, this may be defamation. You may be able to show that the statements damaged your reputation, and caused you emotional distress, loss of employment, or made it more difficult to find re-employment.
However, employers are immune from liability for defamation if the reference information provided to a prospective employer was based on credible evidence and done without malice. This protection extends to statements about job performance, qualifications, and eligibility for rehire. See California Civil Code Section 47(c).
In contrast, an employer who by misrepresentation prevents or attempts to prevent a former employee from obtaining employment is guilty of a misdemeanor. California Labor Code section 1050.
Other California Laws Affecting Job Applicants
Requiring a Job Applicant to Pay a Fee and Make a Purchase: California Labor Code section 450 prohibits employers from requiring a job applicant to pay a fee or make a purchase from the employer or a third party. This furthers the California public policy aimed at protecting the rights of wage earners to receive all of their wages. See also California Labor Code section 2802, which requires employers to indemnify workers for all necessary expenditures or losses incurred by employees in direct consequence of the discharge of their job duties.
Requiring a Job Applicant to Invest in the Hiring Business. California Labor Code section 407 prohibits employers from requiring a job applicant to invest in or purchase the stock of the prospective employer's business in order to obtain employment.
Persuading a Job Applicant to Relocate by Knowingly False Representations: It is unlawful for an employer to convince a job applicant to move from one location to another by knowingly misrepresenting:
- The nature of the offered work, or the existence of such work.
- The length of time the offered work will last, or the compensation to be paid for such work.
- The sanitary or housing conditions relating to the offered work.
- The existence or nonexistence of any labor dispute that may affect the offered work. See California Labor Code §970 Lawyer.
Contact Us
If you were fired or denied employment due to a background check, or if you believe your employer or former employer otherwise violated your rights, call the experienced employment attorneys at Kokozian Law Firm, APC or Contact Us via our online form.
