NEW CALIFORNIA LAWS APPLY TO BACKGROUND CHECKS AND INVESTIGATIONS

In 2002 the California legislature enacted and the Governor signed three bills  (Assembly Bill 1068, Assembly  Bill 2868 and Senate Bill 655) that mandate the responsibilities of employers who conduct background checks and who request investigative consumer reports from a Consumer Reporting Agency (CRA).  An investigative consumer report provides information regarding the character, general reputation, personal characteristics, and mode of living of the subject of the report, usually an applicant for employment or an employee seeking promotion. These laws are now in effect.

You must disclose the following to the individual, accompanied by “A Summary of Your Rights Under the Federal Fair Credit Reporting Act” (FCRA), before the report is requested in a manner dictated by the law.

• That an investigative consumer report will be made regarding his/her character, general reputation, personal characteristics, and mode of living,
• The permissible purpose of the report (employment is a permissible purpose),
• The name, address, and toll free telephone number of the investigative Consumer Reporting Agency conducting the investigation,
• The nature and scope of the investigation requested (criminal convictions, DMV records, etc.),
• A statement of the individual's rights to view the file maintained by the CRA.

You must obtain written authorization from the individual to obtain the report. California employers are obligated to send a copy of the consumer report to the individual, whether or not it was requested, within seven days of receipt of the report. You may contract with the CRA to send a copy directly to the individual.  The copy must contain the name, address, and telephone number and how to contact the CRA.

You must certify to the CRA that you have met all legal requirements.  If you obtain an investigative consumer report, you must supply the name and address of the CRA to the individual prior to taking any adverse action.  If you take adverse action, you must supply a copy of the report.

If you want to obtain a report because you suspect wrongdoing or misconduct by the subject of the investigation, these rules do not apply.

Special rules apply where you conduct background checks on current or prospective employees using in-house personnel.  Where the information you collect or rely on is a matter of public record as defined in the law, you must provide the individual with a copy of the public record within seven days after receipt of the information.  This rule applies whether the information is received in written or oral form, unless the individual waives that right in writing.  You may use a checkbox on an employment application of any other written form to secure a waiver.  If you take adverse action as a result of information contained in those public records, you must provide the individual with a copy of the public record, regardless of any waiver.

If you gather information because you suspect wrongdoing or misconduct by the subject of the investigation, you may withhold the public records until the investigation is complete.  Where you gather information from public records on employees who are not the subject of the investigation, you must provide copies to those persons unless you also have written waivers from each of them or if you take adverse action against those additional individuals.