Posted: Jul 01 2003 | Revised: Aug 21 2018
- Introduction
- Tips for Job Seekers
- Federal FCRA - Basics of Employment Background Checks
- Background Checks in California
- Screening by an Employer or an Outside Firm
- What Cannot be Included in a Background Report?
- Penalties for Violations
- Resources
Note: PRC does not perform background checks.
1. Introduction
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. It also 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
Before you begin your job search, 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 to learn your rights under federal and California law.
- Order your credit report and examine it carefully for inaccurate or misleading information. While many employers obtain credit reports when conducting background checks, in California an employer can only request your credit report for certain positions (see Part 6 of this guide).
- 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 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 look for any erroneous or misleading information.
- Clean up your "digital dirt." Conduct a search on your name -- in quotation marks -- using a search engine. If possible, remove unflattering references. If you have created profiles in social networking websites such as 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 job seeking efforts.
- 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, job seekers 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.
3. Federal FCRA -- Basics of Employment Background Checks
The federal Fair Credit Reporting Act (FCRA) (15 U.S.C. §§1681 et seq.) sets the national standard for employment background checks. 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."
The federal FCRA applies only when an employment background check is prepared by an outside (third party) screening company. If an 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.
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.
- Notify you if information in the report is used to make an "adverse" decision about you.
4. Background Checks in California
Applicants and employees in California have all the rights of the FCRA and more, but there are some key differences:
- California law is broader in scope than the federal FCRA. It covers third-party employment screeners, as does the FCRA. But it also covers employers who conduct background checks themselves, something that the FCRA omits.
- In California, an employment background check is called an "investigative consumer report" (ICR). Your rights and an employer's obligations are included in the Investigative Consumer Reporting Agencies Act (ICRAA). (CA Civil Code §1786). An ICR covers your "character, general reputation, personal characteristics, or mode of living" obtained through "any means." Under California law, a company that collects information for employers and compiles reports is called an Investigative Consumer Reporting Agency (ICRA).
- A job applicant in California or a current employee gets a more extensive notice than the one required under the FCRA. In California, before a background check is conducted by an outside screening company you should receive a notice that:
States the purpose of the report.
Gives the name, address, and telephone number of the screening company.
Includes a summary of your rights to see and copy any report about you.
Includes a box to check if you want a copy of your report. If you indicate you want a copy of your report, it should be sent within three business days of the date the employer receives it. The report may come from the employer or from the screening company.
If the employer conducts a background check itself, without using an outside ICRA, the job application form or a related document should include a box to check indicating that you want a copy of public records obtained in the investigation. California law does not require an employer who conducts a background check in-house to give you the same detailed notice that is required when an outside agency is retained. But you do have the right to receive a copy of the public records compiled in the report. We advise that you always indicate to the employer that you want to see the public records report.
An employer must also give you the website address or telephone number of the screening company. The screening company must post its privacy practices on the company's website. If the company does not have a website, you may request that a copy of the privacy policy be mailed to you.
Can an employer run a check without my permission?
You must give your authorization in writing before an employer can start the investigation process through a screening agency. California law requires your specific authorization if information about your medical history or condition will be obtained.
For employer-conducted screening in California, the permission and notice requirements are less rigid. A cautious employer may ask for your consent, even to do an in-house investigation. However, the only real indication that a background check will be conducted may come in an application or other document. Your permission is not required and you are not entitled to notice if your employer suspects you of wrongdoing or misconduct.
Is my permission required each time my current employer investigates me?
Employers are increasingly conducting investigations of existing employees. California law requires notice and permission from you "at any time an investigative consumer report is sought for employment purposes other than suspicion of wrongdoing or misconduct." (CA Civil Code §1786.16(2))
What will the background check include?
There are many possibilities for what can be covered in an employment background check. The employer is likely to want to verify your prior employment and education. A credit check and a criminal background check are also often requested. Depending on the job involved, your driving records may be obtained. For more on the kinds of information that may be included in an employment investigation, see our guide "Employment Background Checks: A Jobseeker's Guide."
5. Screening by an Employer or an Outside Firm
Why is California law on employment checks stronger than the FCRA?
Under the federal FCRA, you do not have the right to receive notice, nor do you have the ability to dispute inaccurate or incomplete information if the employer conducts its own investigation rather than hire a third party reporting agency. Without an obligation to verify and update information, there's great potential for inaccuracies.
False information can result from a number of factors. A data broker may report information that confuses you with someone who has a similar name. Or the data broker may fail to update crucial information. For example, if you were arrested but not convicted, this information should not be in an employment background check report. In the worst case, someone else may have committed a crime or opened credit accounts using your name and personal information. The results of this identity theft could end up in your background report.
Does the employer have to give me all information it gathers?
No. The employer only has to give you a copy of any public records obtained in checking your background. This could include documents that pertain to an arrest (if it results in a conviction), indictment, conviction, civil judicial action, tax lien, or outstanding judgment. Such records can be obtained if an employer goes directly to the public source or uses an Internet site that collects public records and sells the information.
Nearly all the information compiled in a background check consists of public records. Non-public record information might include reference checks with past employers and a verification of your education credentials. You are not entitled to get information an employer receives by checking your references.
Will I know if an employer is conducting its own check, rather than using a third party?
As indicated earlier, the same formality does not apply when an employer conducts an investigation itself. For instance, you won't get the detailed notice you would receive if the employer hires an outside agency and you may not be asked to give your permission for the investigation on a separate document.
But, if an employer chooses a self-screening method, you should see a box to check on an application or other document that asks if you waive (give up) your right to get a copy of public records the employer gathers. Such notations require a close reading because to check the box may indicate a negative response, for example, you don't want the public records report.
If you do not waive your right, the employer must give you a copy of public records within seven days after receipt. We recommend that you always indicate that you want the public records.
If I waive this right, can I ever get a copy of my records?
Even if you do waive this right, the employer has to give you a copy of the records if an adverse employment action is taken against you. If the employer decides, for example, to fire you based on something that turned up in public records, you are still entitled to a copy of public records - even if you once said you did not want a copy.
If an employer checks your background because of suspected misconduct, you are only entitled to a copy of public records (1) after the investigation is completed and (2) if you did not earlier waive your right to a copy of the records.
What happens if the public records report contains inaccurate information?
The law is not clear on the dispute process if the employer conducts the investigation itself without using an outside company. We advise that you dispute in writing any inaccurate information compiled from public records by an employer who conducts its own investigation. Request that the employer re-investigate the public records compiled in the report. Provide documentation that would explain why the employer is retrieving inaccurate or out-of-date public records information, for example, identity theft-related documents, or court records regarding records that have been expunged.
If an employer hires an outside company to check your background, you must be given a written notice and then provide your consent as described above. (CA Civil Code §1786.16) A screening company, called an investigative consumer reporting agency in the law, cannot go forward with the check unless the employer has certified that the report will only be used for a permissible employment purpose.
If you tell the employer you want a copy of the report, you should get it within three days after the employer receives it. The report should also give you the name, address, and telephone number of the person or agency that conducted the background check. California law also requires that the report's cover page:
Include a notice in at least 12-point boldface type saying that the report does not guarantee the accuracy or truthfulness of the information, but only that the information was copied from public records.
Include a warning that negative information could be the result of identity theft.
Gives notice in English and Spanish of your rights.
How long do I have to get a copy of my report and review the ICR agency's file?
The agency that prepared the report must retain it for two years. During that time, you have a right to access it.
What if the report contains inaccurate or incomplete information?
You can dispute inaccurate or incomplete information. When you file a dispute, a process much like the one you use to dispute information in a credit report is triggered. Here's a summary of how the dispute process works: (CA Civil Code 1786.24)
You file a dispute in writing and provide evidence.
The employment screening agency must investigate your dispute.
If the agency cannot verify the information you disputed, the information must be removed.
The agency does not have to continue an investigation if it decides your complaint is "frivolous or irrelevant."
The agency has 30 days to notify you of the results of the investigation.
You have to be notified if negative information is deleted but later reinserted.
If the agency will not remove negative information, you can include your own statement in the file.
If the inaccuracy is a result of identity theft in which someone committed a crime under your name, visit the California Attorney General's website for information on how to register that inaccuracy.
6. What Cannot be Included in a Background Report?
California law follows the FCRA's general seven-year rule as the limit for reporting most negative information on an employment background check.
In California, criminal convictions can only be reported for seven years unless another law requires employers to look deeper into your background.
Arrests and the formal charges shown in an indictment, information or complaint that result from an arrest can be reported for up to seven years in California. But these records cannot be reported if a conviction did not result. However, they can be reported pending judgment. This means if you were arrested and the matter has not come to trial or has otherwise not been resolved, it can still be reported in an employment background check.
Background check reports often include information from public records. In California, a background checking agency cannot include public record information in an employment check unless it has verified the accuracy of the information during the 30-day period before the report is issued. This applies to such information as arrests, indictments, convictions, civil actions, tax liens, and outstanding judgments.
The ICRAA does not apply if another law requires a government agency or employer to conduct a certain type of background check. Many jobs require an employer to check for criminal convictions far beyond the seven-year limit included in the ICRAA. For example, operators of residential care facilities for the elderly and the facility's employees are subject to a "full criminal records" check (California Health and Safety Code §1569.17). In addition, occupations that require a state license often require an extensive criminal background check.
Can an employer ask about an arrest or conviction that should not be reported?
No. The so-called "Ban the Box" law in the California Labor Code says an employer cannot ask about:
Any arrest or detention that did not result in a conviction.
Any arrest for which pretrial diversion has been completed.
Criminal records that have been expunged, sealed or dismissed.
Public sector employers (California state and local agencies, cities and counties) are prohibited from asking about criminal records on employment applications. Public sector employers must review an applicant's qualifications before inquiring about their conviction history.
In addition, AB 1008 makes it unlawful for private employers with five or more employees in California to include on any employment application any question that seeks the disclosure of an applicant’s conviction history before the employer makes a conditional offer of employment to the applicant. AB 1008 also makes it unlawful to inquire into or consider the conviction history of the applicant until after the employer has made a conditional offer of employment to the applicant.
Provisions of the Labor Code are reinforced in regulations of the California Department of Fair Housing and Employment. (See: 2 Cal. Codes Regs Sec. 7287.4(d)(1) (Register 95, No. 29: 7-21-95) A Department publication lists questions that are inappropriate for a California job applicant.
Please note: References in this guide to laws that set limits on what an employer can ask are included only to alert consumers to their existence. Application of such provisions to specific situations requires consultation with an expert in labor law.
Can an employer ask me or my former employer(s) about my salary history?
AB 168 prohibits an employer from seeking salary history information about an applicant for employment. Salary history information includes both your rate of compensation and information about other benefits. The law applies to all employers, including state and local government employers. This does not prohibit an applicant from voluntarily disclosing salary history information.
Can a criminal record ever be erased?
In some cases, a criminal record may be what the law calls "expunged." Technically, the term means to erase or strike out. Despite the definition, an expunged record does not necessarily mean that all traces of an offense will disappear from the courthouse and/or from the Internet websites of information brokers. Even if a record is expunged, the fact that there was a conviction may not be blocked, even if the details of the case are erased from public view.
The fact that a record is expunged does not mean that you will never have to disclose the information. Application for a state license or a specific kind of job may demand disclosures of information that covers your lifetime. If you have concerns about a prior conviction or how to cleanse your record, you should consult an attorney, a probation officer, or check the court where the record is located. Also visit The Expunged Record website.
Can an employer check the FBI's national data base for criminal convictions?
The FBI maintains a criminal records data base, called the National Crime Information Center (NCIC). It can be accessed for some, but not all, criminal history checks. Whether an employer has access to the NCIC depends on the kind of job involved. The 1993 National Child Protection Act (42 USC §5119) authorizes states to establish procedures for national criminal history checks using the NCIC for employees and volunteers who work with children, the elderly, and persons with disabilities. For more on the NCIC, visit the joint website of the FBI and the Federation of American Scientists.
Can a background check in California include my credit report?
A California employer cannot review your credit report unless the job falls into one of numerous exceptions. Jobs that allow a credit check include:
A position in the state Department of Justice
A managerial position
A position as a sworn peace officer or other law enforcement job
A position for which the information is required by law
A position that involves access to specified personal information
A position in which the person is a named signatory on the employer's bank or credit card account
A position that involves access to confidential or proprietary information
A position that involves regular access to $10,000 or more of cash
If you are a job applicant or employee, the employer who orders your credit report must give you notice that a credit report will be ordered along with an explanation of what exemption allows this access.
7. Penalties for Violations
Violations of the ICRAA can result in stiff penalties for the company that issued the report and for the user of the report (the employer) (CA Civil Code 1786.50). Under the ICRAA you can sue for actual damages or $10,000, whichever is greater. Class action lawsuits are allowed. Court costs and attorney fees can also be awarded. The court can award punitive damages if it finds the violation was grossly negligent or willful.
Can I sue an employer and/or employment screening company?
Both California and federal law enable individuals to sue (CA Civil Code §§1786.20, 1786.1786.50; FCRA 15 U.S.C. §§1681n, 1681o).
Before seeking legal help or contacting a mediator, remember that both California law and the FCRA have built-in measures for resolving disputes. In most situations, the dispute procedures spelled out in the law should be followed before taking the next step. To determine if your specific situation would fall under the provisions of California or federal law, we advise that you talk with an attorney who specializes in employee rights.
The website of the National Employment Lawyers Association provides a directory of member attorneys. The search box is in upper left hand corner.
The website of the California Employment Lawyers Association provides a member directory.
Most local bar associations provide free or low-cost attorney referral services.
8. Resources
California Law
Investigative Consumer Reporting Agencies Act (ICRAA), CA Civil Code §1786 et seq.
Consumer Credit Reporting Agencies Act (CCRAA), CA Civil Code §1785 et seq.
To access the California Civil Code, visit the California Legislative Information website.
Federal Law
Fair Credit Reporting Act (FCRA) (15 U.S.C. §§1681 et seq.)
Publications
Federal Trade Commission, "Using Consumer Reports: What Employers Need to Know"
Federal Trade Commission, "Disputing Errors on Credit Reports"
Privacy Rights Clearinghouse. "Employment Background Checks: A Jobseeker's Guide"
U.S. Equal Employment Opportunity Commission, "Background Checks: What Job Applicants and Employees Should Know"
U.S. Equal Employment Opportunity Commission, "Background Checks: What Employers Need to Know"
Additional Resources
"Why California Is Different," Employment Screening Resources
"Ten Critical Steps for Ex-Offenders to Get Back into the Workforce," by Les Rosen, Esq., November 2015
The Expunged Record, a comprehensive guide to expunged records in employment background checks
The Privacy Rights Clearinghouse developed this guide with funding from the Rose Foundation Consumer Privacy Rights Fund.
We acknowledge the assistance of Les Rosen, Employment Screening Resources, in reviewing this guide.