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The state of California affords employers ample opportunities to hire top-notch workers. The state attracts thousands of potentially qualified people from all around the world each year. It’s no wonder. With a booming tourism industry and a thriving biotechnology scene, California is a mecca for employers and employees alike. That said, getting a background check in California for pre-hires can pose quite a few challenges. Here are a few things for California employers to consider that are specific to the Golden State.
How Are Background Checks Different for California Employers?
It’s important to know that a pre-employment background check in California is relevant only to employers who are registered as a business with the secretary of California state. This means that a California background check may only be conducted by a company that is a certified CA business, and is employing workers to work in the state. Therefore, anyone hiring an employee in CA must be a CA employer and must follow the state’s specific requirements during the pre-hire process.
Because compliance with California background check laws is essential for working and hiring in the state, most employers opt to work with professionals who provide services for background checks, such as PreSearch. We ensure all pre-hire background checks are compiled to employers’ total satisfaction while also adhering to employment laws. With this in mind, here are the details that specifically pertain to CA employers when obtaining a background check in California for pre-hires.
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Background Check Laws in California
As mentioned, California is bursting with opportunities for employers and workers alike. However, there are aspects to working in CA that are unique to the state. For example, one in three of the 40 million residents in the state have some sort of criminal record. That means at any given time, employers have a high chance of screening a pre-hire who has some kind of criminal activity in their employment background check in California.
In response to this unique circumstance, the federal government and the state of California have initiated specialized laws and regulations for employers hiring in California. These regulations are meant to give Californians with criminal records seeking employment opportunities a better chance at getting jobs, rehabilitating into society as well as encouraging them to contribute to CA communities and the state economy. Considering these special circumstances, here are critical details about a background check for employment in California that all employers should know.
Federal Laws on Employment Background Checks in California
While it is certainly necessary to abide by background check laws in California, employers must also pay close attention to federal pre-hire laws too when it comes to conducting a compliant screening. Here are a few federal employment laws that every employer should know about and abide by.
Civil Rights Act, Title VII
This federal employment law was established in 1964. It is meant to prohibit employers from discriminating against pre-hires based on certain characteristics. These characteristics include but are not limited to an applicant’s race, religion, gender affiliation, or national origin. These and other qualities in a pre-hire must not be weighed in the decision-making process of awarding or denying employment based on this federal employment law.
The Fair Credit Reporting Act (FCRA)
Depending upon the job position, a credit report might be included with some background checks in California. If this is the case, the FCRA is intended to protect consumers (in this case, applicants) from violating their privacy when it comes to credit reporting and how that information is used.
Regarding an applicant, the FCRA states that employers must notify pre-hires that a credit report will be conducted and obtain their permission before the report is run. It also mandates that employers must inform the applicant if the credit report information reveals a conflict in granting him or her the job position. The FCRA also allows applicants to dispute any information in the report deemed incomplete, inaccurate, or in dispute.
California State Laws on Employment Background Checks
In 2018, the California Supreme Court made a judgment that determined overlaps between Investigative Consumer Reporting Agencies Act (ICRAA) and the Consumer Credit Reporting Agencies Act (CCRA). The ruling was based on the class action between Connor v. First Student, Inc. in which the Defendant did not receive written authorization to conduct a background check during the pre-hire process. Here is a breakdown of both ICRAA and CCRA as each applies to performing a background check in California on pre-hires.
While the Consumer Credit Reporting Agencies Act works in tandem with the Investigative Consumer Reporting Agencies Act, there are some deviations when it comes to conducting credit reports on pre-hires. Section 1785.20.5 of the CCRAA states that credit reports and investigative consumer reports should be treated as background reports. This means that applicants are not to be charged for credit reporting – just as they should not be charged for background checks in California.
This consumer reporting regulation is similar to the FCRA, but it is specific to the state of California and has certain requirements upon employers when conducting credit report checks on pre-hires. For instance, the ICRAA allows only the reporting of open cases of criminal convictions. The ICRAA also regulates how employers may generate background checks, as well as mandates all pre-hires should be notified in writing that they are subject to background and credit report checks.
According to Section 1786.16 (2)(B)(iv) of the ICRA Act, certain conditions must be met before an investigative consumer report is prepared upon an applicant. Some of these conditions include the pre-hire being clearly notified that a consumer report will be conducted, and the results of that report are subject to dispute if the pre-hire deems it inaccurate.
The ICRAA limits conviction information to seven years. This differs from the Federal Credit Report Act which can view an applicant’s credit history beyond seven years if he or she stands to earn over $75,000 per year if granted the job position. Because the ICRAA trumps the FCRA, the time limitation stands, and California employers may not surpass the seven years.
This is the California Information Privacy Act. It expands upon the FCRA by establishing strict requirements for employers who use third-party credit reporting agencies instead of doing in-house or independent background checks. For employers who opt to do credit and background check reports on their own, CIPA states that the applicant must have the option to subject themselves to the check voluntarily, and must also receive a copy of their background check results.
If the employer opts to hire a third-party agency to conduct a background check in California, then CIPA states the employer is required to present the applicant with a “Clear and Conspicuous” notice. This notice must be in writing, and it includes the nature and scope of the background check. The notice to the applicant should include the defining purpose of the background check conducted by the third-party service such as, the purpose of the investigation, the contact information of the reporting agency, and a summary of the applicant’s rights, as well as allowing them to receive a copy of the report once the third-party background check service has the results.
There is one caveat to the CIPA regulations. If an employer conducts a background check as a result of suspecting an applicant or employee has engaged in misconduct or wrongdoing, the CIPA does not require the employer to issue a notice or obtain the applicant or employee’s consent to have a background check conducted.
CA Labor Code 432.7
According to this California labor code, both private and public employers in CA are not allowed to ask an applicant about certain aspects of their criminal history. For instance, California employers are prohibited from asking an applicant about sealed or dismissed convictions or criminal charges that did not result in a conviction.
Also, this labor code prohibits employers from asking applicants if he or she has undergone any pre or post-trial diversion programs. Employers may ask applicants if they have any currently pending criminal charges. Lastly, employers are not permitted to make hiring decisions based on any of these factors.
Ban the Box and Fair Hiring Laws
The “Ban the Box” is also known as the “Fair Chance Act.” It is a law that came into effect in California when the California Fair Chance Act was passed in 2018. The law is meant to give applicants a better and fair chance at earning employment regardless of criminal history.
Ultimately, the law mandates that an employer must base hiring decisions on applicants’ qualifications before conducting criminal background checks in California. In short, the law prohibits California employers from inquiring about felony convictions or criminal history before presenting a job offer to an applicant.
We mentioned the Civil Rights Act, Title VII earlier, but there are still other anti-discrimination laws California employers must adhere to while proceeding with the pre-hire process. Here are a few laws dealing with discrimination that employers should be mindful about while getting a California background check.
The Equal Employment Opportunity Commission is a federal organization that is meant to protect the rights of applicants and employees. Both the EEOC and the state of California expressly prohibit employers from discriminating against individuals based on characteristics such as religion, race, or gender affiliation.
As mentioned earlier, California is unique because statistics show that residents of the state have a high arrest rate. Therefore, California has special employment anti-discrimination laws in order to give applicants a fair chance at obtaining work, contribute to the economy, and experience the opportunity to be a fully functional member of society after a criminal “mark against” on their record.
Additionally, the EEOC mandates that employers must provide applicants with a criminal record a chance to explain the circumstances and the opportunity to present information proving the applicant should not be passed over for employment based on the criminal offense.
What Is the California 7-Year Rule for Background Checks?
Criminal background checks in California can only go as far back as seven years. Under the California civil code, any complaints, indictments, convictions, misdemeanors or arrests older than seven years may not be reported according to California criminal background check laws.
Also, according to the California 7 year rule background check, expunged or sealed records as well as full pardons and arrests that did not lead to a conviction are not permitted to be reported at all. Additionally, California employment law mandates that employers must save all background checks for a minimum of two years.
Why Should Employers Consider Background Checks in California?
In this day and age, employers simply cannot rely on the “trusted handshake” method to hire new employees. Not only are background checks in California essential to ensure you are hiring the most qualified candidate – they can also protect your business from damaging consequences.
At the very least, a criminal background check should be conducted on pre-hires. This is especially true if the job position entails sensitive tasks. Employers may also want to seek out more in-depth background checks to gain verification that an applicant has the education, work experience and qualifications he or she needs to work effectively within the business.
How Background Checks in California Are Conducted
For employers going the DIY route, they must apply to become an authorized applicant to the California Department of Justice. If approved, the authorized employer may then submit a request to obtain criminal records on applicants. However, before requesting criminal records on a pre-hire from the DOJ, employers must obtain written consent from the applicant on a DOJ consent form and submit it to the Department of Justice. Applicants must also have their fingerprints scanned in order to complete the process of criminal background checks in California.
It’s important to note that conducting a background check in this way will not provide employers with additional information such as educational background, qualifications, or work history. Furthermore, getting a background check through the California DOJ will only show criminal history in the state of CA. It will not show criminal activity in other states or internationally (if committed).
What Does a California Background Check Typically Show
The answer to this question depends upon how employers choose to go about obtaining a background check in California. As mentioned, if an employer only requests a criminal background check from the Dept. of Justice, then only criminal activity (if present) will be revealed on that report.
Alternatively, if an employer opts to use a professional and quick background check service such as PreSearch, there is a wide array of information available. PreSearch enables CA employers to choose from background check options such as educational histories, verification of credentials, employment history and more. Of course, PreSearch can also complete criminal background checks in compliance with federal and California laws which will reveal information such as criminal charges (if any), date of filing, the level of offense (felony or misdemeanor), and sentencing information.
How Much Can a Background Check Cost in California?
*a select number of states charge an additional, mandatory, county court fee in addition to our standard service fee.
Please reach out if you would like a quote for background screening services.
If an employer chooses to obtain a background check through the California Department of Justice, the fee is $35 per each request. However, it’s important to calculate the cost of doing California background checks independently. To explain, in-house background checks can be costly in terms of the amount of time it takes to track down all the information required.
Moreover, conducting independent background checks could be costly if they are not done in compliance with federal and state laws. Failure to comply with pre-hire rules and regulations could result in expensive penalties and fees – not to mention potential lawsuits which can also be costly. Therefore, the most cost-effective and best value for employers is to obtain background check reports from a trusted service provider such as PreSearch.
Why Look To PreSearch for Background Check Services in California
After reviewing these lengthy and somewhat overwhelming factors about conducting a legally compliant employment background check in California, it should be clear that employers in California could all benefit from having an ally on their side. That is what PreSearch is all about.
When you partner with our professionals, you can expect superior quality results, with a fast turnaround. You can also gain peace of mind knowing that you are getting comprehensive, current, and accurate details on your pre-hires – all conducted within compliance with federal and California state employment laws.
Contact us today and let us show you how we can save you time, money, and frustration by making background checks in California as seamless and simple as possible.
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