Employee's Rights on Background Checks in California

Employees have rights when employers do background checks.

Employers often need to do background checks on prospective employees before hiring them. An employer who plans to hire a worker may want to do a background check to protect himself, his business and his other employees. Federal and state laws actually require background checks for some jobs. California law clarifies and strengthens federal law regarding the rights of employees who must submit to a background check.

Included Information

Employment background checks can include information about the applicant's criminal records (in California, only if convicted), credit history, past claims for workers compensation, drug test records, education records, references and driving records. In addition, a background check can allow access to medical records, property ownership, military records, vehicle registration and occurrences of bankruptcy.

Information Limits

According to federal law, certain pieces of information have a limitation on the look-back period for inclusion in a background report. Bankruptcies older than 10 years may not appear on a background check, nor can tax liens or accounts placed for collection appear after seven years. Any sort of negative information, such as civil suits, judgments or arrest records may not appear on a background check after seven years. Federal law allows criminal convictions to appear on a background check indefinitely, but California law caps this information at seven years.

Special Exceptions to the Rule

Health care employers in California may access background information on a potential employee's sex-related arrest (even if there was no conviction) only when the employee's job description may require future access to patients. Employers who must give employees access to medications may access information about a potential employee's drug-related arrests but not otherwise (again, even if there was no conviction). Public utilities, security guard firms, child care facilities and law enforcement agencies may access information about the employee's arrest record.

Checking Bankruptcies or Workers' Compensation Claims

California law states that, although a background check might indicate that the employee has filed for bankruptcy or workers' compensation, the employer cannot refuse to employ the individual on this basis. If the injury or illness for which the worker received workers' compensation will not impact on the new workplace, the employer cannot deny him employment on that basis.

Employee Permission

Only the employee can grant permission to release educational records (recommendations, transcripts, discipline records, and financial information), military records (the military can release release name, rank, duty assignments, salary, awards, and duty status to the employer without the employee's consent) or medical records for an employer background check.

Reference Checks

Employers may freely contact an employee's past employers for references, but California law forbids employers from giving out false or misleading references to interfere with their former employee's job search.

Obtaining Copies of Background Checks

California's "investigative consumer reporting" law requires that employees or potential employees may obtain a copy of any background check done on their background. This happens regardless of whether the employer initiates the background check or whether he hires an outside company to check the employee's background. Along with the report, the reporting agency must provide a written explanation of the employee's rights in Spanish and English.

References

• A Matter of Fact:California Background Check Law and FCRA Employer Requirements
• Privacy Rights: Background Checks
• Office of the Attorney General of California: Background Checks