California background checks: Different from the rest of the United States

California background checks: Different from the rest of the United States

By Attorney Lester Rosen, Founder and CEO of ESRCalifornia has unique rules for background checks that go beyond those of the other 49 states and the federal Fair Credit Reporting Act (FCRA), which regulates background checks in the United States.While California employers always need to follow the FCRA, there are additional rules and requirements in the state when it comes to background checks for employment purposes.

California employers must follow these rules to the letter since applicants can sue for up to $10,000 for any violation regardless of damages. Employers in California, and employers doing business in California, need to be aware of these laws:

The San Francisco Fair Chance Ordinance

Background checks in CaliforniaAlso known as the Ban the Box Ordinance, this Ordinance took effect August 13, 2014. Ban the Box requires employers with San Francisco City or County offices and worksites who have 20 or more employees to follow strict rules about inquiring into and using criminal record history of job applicants and employees.

The Ordinance amends Article 49 of the San Francisco Police Code that outlines procedures for considering arrests, convictions, and related information in making employment decisions. With regard to hiring, the Ordinance prohibits employers from inquiring into an applicant’s criminal history in an employment application or first live interview.

Employers must post a notice informing applicants and employees of their rights under the Ordinance in a conspicuous place at every workplace. In addition, job postings must state that the employer will consider qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance.

Senate Bill No. 530

Senate Bill No. 530 (SB 530) took effect January 1, 2014 and provides significant new protection to ex-offenders who committed crimes, including felonies, when it comes to job hunting and what employers can legally discover or use.

The new law prohibits an employer from asking about, seeking, or utilizing criminal convictions that have been judicially set aside. Employers violating the new prohibitions can face civil penalties and even misdemeanor criminal charges if done intentionally. It also allows a convicted person to get a case expunged sooner.

Assembly Bill 218

Assembly Bill 218 (AB 218) was signed into law in October 2013 to reduce unnecessary barriers for adult Californians with arrest or conviction records, who are seeking employment. AB 218 requires the state, counties, cities, and special districts to remove the conviction-history question from their job applications and wait to ask the question when the applicant at least meets “minimum employment qualifications.” Employers such as law enforcement and school districts and job positions, subject to a criminal background check by occupational or licensing law, are exempt.

Senate Bill 909

Senate Bill 909 (SB 909) took effect January 1, 2012 and relates to “offshoring” of Personally Identifiable Information (PII) of consumers who are the subjects of background checks outside of the United States and beyond the protection of U.S. privacy laws.

SB 909 requires that consumers are to be notified as part of a disclosure before the background check of the web address; where they may find information about the investigative reporting agency’s privacy practices, and whether personal information will be sent outside the United States. SB 909 also requires background check firms to conspicuously post their privacy policy on websites with a statement that indicates whether the personal information will be transferred to third parties outside the U.S. In the event consumers are harmed by a background check firm negligently sending data outside of the U.S., SB 909 provides for damages to consumers.

Assembly Bill 22

Assembly Bill 22 (AB 22) took effect January 1, 2012 and regulates the use of credit report checks of job applicants and current employees by employers for employment purposes. AB 22 prohibits employers or prospective employers—with the exception of certain financial institutions—from obtaining a consumer credit report for employment purposes unless the position of the person, for whom the report is sought, is specified under the law. In addition, AB 22 requires the written notice informing the person, for whom a consumer credit report is sought, for employment purposes to also inform that person of the specific reason for obtaining the report.

Other background check rules

In addition to these new laws, California has many existing rules for background checks in the state. Employers must understand the California Investigative Consumer Reporting Agencies (ICRA) Act, CA Labor Code, and the Regulations for the California Department for Fair Employment and Housing Act (FEHA). In California, all background checks are Investigative Consumer Reports (ICR), a different terminology than the FCRA, and employers face substantial civil exposure up to $10,000.

Despite all of the laws and special rules in California, “due diligence” through background checks is still mission critical for employers in the Golden State. Employees are typically a firm’s greatest investment and largest cost, and each hire also represents a large potential risk. Every employer has the obligation to exercise due diligence in hiring since an employer that hires someone it either knew—or should have known through reasonable screening—was dangerous, unfit, or unqualified for the work can be sued for negligent hiring. The bottom line: California employers must maintain compliance with a whole different set of rules than the rest of the country when conducting due diligence background checks.

The above information is provided for illustrative purposes only and should not be construed as legal advice.

Join Lester Rosen November 4 for his live webinar, “Background Checks in California: HR Best Practices Given EEOC Guidance, the FCRA & Ban-the-Box Laws”, to gain more insight on the trending HR topic.

Attorney Lester S. Rosen, the founder and CEO of Employment Screening Resources® (ESR), is a consultant, writer and frequent presenter nationwide on pre-employment screening and safe hiring issues. His speaking appearances have included numerous national and statewide conferences. He has qualified and testified in the California as an employment screening expert on issues surrounding safe hiring and due diligence. He is the author of The Safe Hiring Manual—The Complete Guide to Employment Screening Background Checks for Employers, Recruiters, and Jobseekers (Facts on Demand Press / 736 Pages). He is also featured as the narrator in a 23 minute training video by Kantola Productions called “Safe Hiring: How You Can Avoid Bad Hires.” He has also written The Safe Hiring Audit, has written and appeared in a training DVD on negligent hiring, and has produced the first industry course on background checks.

About the Author

FosterThomas is a leading professional services company that provides solutions in the areas of Human Resources Consulting and Outsourcing, HR Staffing, Outsourced Recruiting, Employee Benefits Brokerage, Payroll Implementation and Services, HR for Government Contractors, Business Insurance, HR Compliance and Risk Management. We help organizations by providing solutions designed with a focus on cost containment strategies and increasing HR efficiency. FosterThomas HR Consulting was established in 1993 with offices in Annapolis, Maryland (Corporate), McLean, Virginia and Raleigh, North Carolina. Today, FosterThomas occupies a unique position as a full service provider of HR services.

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