New Laws May Mean a New Chance.
No More Background Checks For Applicants?
California tends to add protections for its residents on top of the national standard set by the federal Fair Credit Reporting Act (FCRA). However, it’s important to note that the FCRA only applies when an employer has hired an outside agency to conduct the background check.
FCRA requires the following:
1) Obtain your permission.
2) Give you notice on a separate document that a report may be required.
3) That you are given the opportunity to consent
4) That you are notified if information in the report is used to make an “adverse” decision about you
5) Get your specific permission if medical information is requested.
6) Give a specific notice if your neighbors, friends, or associates will be interviewed about your “character, general reputation, personal characteristics, or mode of living.” This is called an “investigative consumer report” under the FCRA.
Keep in mind the information obtained in the background check usually can only go back 7 years. There are a few exceptions to this; up to 10 years for issues such as bankruptcy, or insurance policies over a certain dollar amount. Lastly, the FCRA states that there is no limit to the number of years your criminal convictions can be reported.
If the employer has decided not to hire you or promote you based on the information obtained in the background check, they must issue a “pre-adverse action notice” along with a copy of the background report, before an adverse action is taken.
California law has stated, the employer must provide the web address and telephone number of the third party that conducted the report. If the company does not have a website, you may request that a copy of the privacy policy be mailed to you. Also, should you request a copy of the report, the company must produce it within 3 days of your request. California law also requires that the report’s cover page include:
• A notice in at least 12-point boldface type stating that the report does not guarantee the accuracy or truthfulness of the information, but only that the information was copied from public records.
• A warning that negative information could be the result of identity theft.
• Gives notice of your rights in English and Spanish.
Interestingly enough, California has also decided that credit reports can only be obtained for people applying for specific job titles or functions. (CA Civil Code §1785 et seq.) Again, the employer must give notice that a credit check will be obtained, along with an explanation of why the check is allowed.
If the Employer chooses to conduct its own investigation and forgo a third party firm, the FCRA and all of its provisions do not apply. However, California law does impose a few regulations on the employer. (CA Civil Code §1785.53) For instance, the employment application should contain a box to be checked indicating that the applicant wishes to receive a copy of all public records obtained during the internal investigation. In addition, as of 2014, you can not be asked to submit to a background or credit check until after you have gone through initial stages of interviewing, and it is determined that you are qualified to move forward. This could help you get a foot in the door and avoid previous discrimination for a past record.
Labor law is complex; if you have any questions regarding your employment it is recommended that you contact United Employees Law Group. We can help you understand your rights and it is always a free call. We take all cases on contingency. That means we only get paid if we collect for you, so you have nothing to lose and everything to gain. CALL TODAY.
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