California employers have a right to access privately generated, public criminal records, so long as the laws governing a job applicant’s involvement, relevant findings, and report accuracy are observed. While many employers rely on criminal background checks to determine if there’s anything in a job candidate’s past that could put their clients, employees, or reputation at risk, evolving employment laws have made background checks a complicated process. Working with a reputable screening firm is highly recommended.
1. Job Applicant Involvement
Although it’s legal to conduct a criminal background check for employment purposes, you must receive written authorization from the job applicant before doing so. You also have to provide them with a document summarizing:
- the purpose of the background screening report,
- the full contact information of the screening company, and
- their rights under both the Fair Credit Reporting Act (FCRA), and California’s Investigative Consumer Reporting Agencies Act (ICRA)
A check-box allowing the candidate to request a copy of any report generated is also a must, since declining an applicant based on relevant criminal findings means both notifying them of the reason, and giving them an opportunity to dispute the information reported.
2. Relevant Findings
In California, you’re only permitted to consider applicant convictions that occurred within the past seven years, and that are relevant to the job you’re screening for. There are also limitations on what can be reported as part of a criminal background check. For example, the California Labor Code considers the following to be unusable information:
- arrests that did not result in a conviction (unless judgement is pending),
- arrests that led to the completion of a diversion program, and
- criminal records that were sealed, expunged, pardoned, or dismissed
While these results won’t generally show up on a background screening report, this list is not exhaustive and there are many exceptions. A quality criminal background check is intended to reduce or eliminate potential employee problems, so when in doubt, seek legal advice.
3. Report Accuracy
California Civil Code 1786.28 states that the reporting of any public record information that may adversely affect a resident’s ability to land a job – arrests, indictments, convictions, and tax liens, for example – must be complete and up to date. In other words, screening agencies can’t report information as part of a background check unless they’ve verified its accuracy.
Employment criminal background checks should include both National and County criminal record searches, based on the address history developed from a Social Security Number trace report. The National Criminal Database is also a good initial step for:
- finding potential criminal records not associated with the address history, or that are out of state or county
- yielding other useful searches like the Sex Offender Registry, and the Office of Foreign Assets Control (OFAC)
But while National Database records can be used to create a preliminary screening report, job applicants can’t be denied work based on these findings alone.
National Criminal Database records are often incomplete and out of date because each county has its own way of reporting to the database, and some don’t report at all. As a result, any records that surface there must be backed up by a manual, onsite search at the County Court in the jurisdiction where the record originated.
Customizable and industry-specific pre-employment screening solutions play an important role in a solid risk management plan. And arming yourself with a working knowledge of what can and cannot be reported in a criminal background check, will help protect your organization from the fallout of a regrettable hiring decision.