Employment backgrounds checks in california
Employment Background Checks in California ARE DIFFERENT...
Employment Background Checks in California can be complicated. If you are an employer that hires people in California you need to understand how to conduct compliant background checks.
The majority of litigation against employers and background screening companies stems from using improper forms. The simple stuff will get you in trouble, so it’s the best place to start. Make sure that you are using compliant authorization and disclosure forms that meet the FCRA (Fair Credit Reporting Act) and the California State Compliance Regulations. The paper forms and any electronic application that is being sent by your employment background screening partner should clearly state the name of your company along with the name of the company conducting the background check. This means that generic forms and the forms used with your prior background screening vendor should not be used.
It is strongly recommended to have Human Resources Consultant or Employment Lawyer who understands California laws review all forms you are using to obtain authorization to conduct background checks
As a California employer there are some hiring practices and processes that should be followed in order to maintain compliance. The laws and regulations are set up in way that prohibits employers from conducting background checks on the top three potential applicants and then making an offer to the one or two that don’t have a criminal record.
In order to be compliant in California here is the recommended process;
- Extend an offer letter to a potential applicant that is contingent on the employment background check and substance abusing screen clearing without any red flags.
- Once the offer letter has been signed initiate the background check and substance abuse screening.
- Review the employment background check report and substance screen results.
- If there are no issues on the background check report or substance abuse screen, then you are clear to hire the applicant and move to on-boarding.
If the background check report contains reportable records (criminal convictions with a disposition date in the last seven (7) years) then you need to proceed with a review process. In California the steps to be followed in the review process are outlined in the Ban the Box legislation that was passed a couple of years ago. The Ban the Box assessment is a three-part assessment that should be documented.
“Ban The Box” (3-part Assessment)
- How severe is the reportable criminal record? Is it a felony conviction for murder or a misdemeanor case for theft? Is it a DUI (driving under the influence) conviction?
- How would the criminal conviction directly impact the job the applicant is being hired for? As an example, if the person has a history of DUI and Assault and the job, they are being considered for is a driver that makes deliveries to customers the charges would be at issue. If the applicant has a conviction for trespassing and will be working in a warehouse there isn’t as much direct impact.
- How much time has elapsed since the criminal conviction(s)? If the applicant has a criminal conviction for assault with a disposition in the last year that would be more severe than a conviction for assault that goes back six (6) years.
The Ban the Box process must be documented and stored so that you have proof of the steps taken if necessary. If you elect to not hire the applicant based on the results of the employment background check even after conducting your Ban the Box assessment you must follow this process.
The applicant is entitled to a consumer copy of the report which is a full record of any and all information that was found in the report. The consumer copy also includes FCRA mandated language. If anything in the report is not accurate the applicant can contest the results and request a re-investigation. This re-investigation must be undertaken by the background check company (CRA- Consumer Reporting Agency) and it must be completed within 30-days. Any information that was found to be inaccurate or requiring an update in the report must be modified and an updated consumer copy must be sent to the applicant.
Pre-Adverse Action – Adverse Action
The first step in communicating to the applicant that the employment background check report contains elements that are adverse and create obstacles to hiring is to send the Pre-Adverse Action notice. The Pre-Adverse Action notice communicates the fact that the background check report contains records that are reportable and impact a hiring decision. This report can be sent via mail or email and it includes a consumer copy of the report with all records found.
Once the pre-adverse action notice is sent it is reasonable to wait five (5) business days for the applicant to respond or contest the findings. If the applicant does not contest the findings within the report after five (5) business days, you can move to the Adverse Action process. The Adverse Action notice again communicates that the records found in the background check report preclude the employer from hiring the applicant. The Adverse Action notice will also include a consumer copy of the report.
What should your Background Checks include?
SSN (Social Security Number Trace)
National Criminal Database (including searches on alias names)
- National Sex Offender Database
- Patriot Act Watch List
- National Security & Terrorism Watch Lists
- OFAC (Office of Foreign Asset Control)
- Interpol Most Wanted List
- OIG (Office of Inspector General)
- General Services Administration Excluded Parties System List
- Denied Persons List
County Criminal Record Searches
County Civil Record Searches
Driving Record (DMV)
Federal Criminal Record Searches
Federal Civil Record Searches
Bankruptcies, Judgments, & Liens