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PRIVACY RIGHTS: EMPLOYMENT BACKGROUND CHECKS IN CALIFORNIA

1. Introduction

If you are looking for a job in California or even if you have one, an employer is almost certain to seek information about you. It’s what you can expect as employers today are faced with news of workplace violence, falsified credentials, embezzlement, and lawsuits that result from bad hiring decisions.

You, on the other hand, have well-founded concerns if an employer asks about things that have no apparent connection to the job. You may also worry that an incident from long ago will be discovered, but that you will not get a chance to explain.

You may not have a skeleton in the closet or even be particularly concerned that your employer knows a lot about your private life. But, you certainly want to know that the information the employer receives is accurate, complete, and not misleading. You also want to know that the report is about you — and not an identity thief who has stolen your good name. California law now gives you greater access to information your employer sees.

This guide provides a summary of the Fair Credit Reporting Act (FCRA), the national standard for employment background checks. It describes how California law adds to the rights you have under the FCRA. And it explains your right to get a copy of a background check and what to do if your report includes inaccurate or incomplete information.

2. Tips for Job Seekers

Applying for a job is among the most crucial tasks we face in life. No one wants to be disadvantaged by a negative background check. Before you embark on that job-seeking journey, we recommend that you take the following steps. Do the same if your current employer tells you that existing employees will undergo job screening.

Read this guide and other publications to learn your rights under federal and state law. Additional publications are listed in Part 8.

Order your credit report and examine it carefully for inaccurate or misleading information. Many employers obtain credit reports when conducting background checks on job applicants and existing employees.

Check court records. If you have an arrest record or have been involved in court cases, check the files at the county where the incidents were filed. Make sure the information is correct and up to date. This is very important if your case has been expunged, sealed, or dismissed, or if you have been a victim of criminal identity theft.

Check DMV records. Request a copy of your driving record from the Department of Motor Vehicles, especially if you are applying for a job that involves driving.

Do your own background check. If you want to see what an employer’s background check might uncover, hire a company that specializes in such reports to conduct one for you. That way, you can discover if the data bases of information vendors contain erroneous or misleading information. (See the Yellow Pages under “Investigators.”)

Clean up your “digital dirt.” Conduct a search on your name — in quotation marks — in the major search engines such as Google and Yahoo. If possible, remove unflattering references. If you have created profiles in social networking Web sites such as MySpace and Facebook, review, and if necessary, edit your postings. Re-read any blog entries from the perspective of a potential employer. Remove or edit postings that could harm your jobseeking efforts. But don’t necessarily remove Web content that shines a light on your positive achievements. A personal Web site or blog that highlights your good deeds could benefit you.

Read the fine print carefully. When you sign a job application, you will be asked to sign a consent form if a background check is conducted. Read this statement carefully and ask questions if the authorization statement is not clear. Unfortunately, jobseekers are in an awkward position, since refusing to authorize a background check may jeopardize the chances of getting the job. Always check the box that says you want to obtain a copy of the report.

Report employers and California background screening companies that do not follow the California Investigative Consumer Reporting Agencies Act (CA Civil Code Sec. 1786) to the Attorney General’s Office of Public Inquiry Unit, (916) 322-3360 or toll free in CA 800-952-5225. Or visit the AG’s contact website: http://oag.ca.gov/contact

For additional tips, read our Fact Sheet 16, “Employment Background Checks: A Jobseeker’s Guide,” www.privacyrights.org/fs/fs16-bck.htm

3. Federal FCRA — Basics of Employment Background Checks

The federal Fair Credit Reporting Act (FCRA) sets the national standard for employment background checks. (15 U.S.C. §§1681 et seq.) Even in states like California that have laws governing background checks, employers have to follow the FCRA. State laws may give more rights to workers, but they cannot take away from the basic rights of the FCRA.

The FCRA covers “consumer reports” issued for multiple purposes, and this is a source of confusion to many individuals. In addition to covering credit checks, the FCRA also governs employment background checks for the purposes of “hiring, promotion, retention, or reassignment.” To learn more about credit reporting, read the PRC’s Fact Sheet 6, “How Private Is My Credit Report,” www.privacyrights.org/fs/fs6-crdt.htm.

The federal FCRA applies only when an employment background check is prepared by an outside screening company. When a third party compiles a report, the FCRA requires (1) that you are notified that an investigation may be performed, (2) that you are given the opportunity to consent, and (3) that you are notified if information in the report is used to make an “adverse” decision about you.

But under the FCRA, if the employer does not hire a third party to conduct the investigation, but compiles the report itself, the provisions of the FCRA do not apply. However, California law does require some notice and access if the employer conducts its own report. This is discussed in the Part 4 below.

When an outside company prepares the report, the FCRA requires the employer to:

  • Give you notice on a separate document that a report may be required.
  • Obtain your permission.
  • Get your specific permission if medical information is requested.

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.

Under the FCRA, negative information usually cannot be reported after seven years. Exceptions apply for bankruptcy information (10 years) and jobs or insurance policies over a certain dollar amount. The FCRA says that criminal convictions can be reported indefinitely.

The employer must give you a “pre-adverse action notice” along with a copy of the background report before an adverse action is taken. For job applicants, an “adverse action” means the employer has decided not to hire you based on the information in the report. For existing employees, an adverse action might be termination. Or it could be a decision to not promote you, or to demote you.

You should get a second notice after an adverse action, telling you how to dispute inaccurate or incomplete information. For more on employment background checks under the FCRA, see the Federal Trade Commission publication, “Using Consumer Reports: What Employers Need to Know,”http://business.ftc.gov/sites/default/files/pdf/bus08-using-consumer-reports-what-employers-need-know.pdf.  Also read PRC Fact Sheet 16, “Employment Background Checks: Jobseeker’s Guide,” www.privacyrights.org/fs/fs16-bck.htm.

To continue reading, please visit:  http://www.privacyrights.org/fs/fs16a-califbck.htm