California State Flag

California Background Check Laws

Let's Talk

California State Flag

California Employment Screening laws

2022 Employee Background Checks and Drug Screening Trends White Paper

Employers that are either located in California or hiring California residents must abide by the Federal FCRA, and applicable California state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with California state laws. This page also contains steps an end-user must take to stay in compliance with California state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on California state laws, please consult your legal counsel.

Employment Background Check Laws In California:

California Civil Code §1786.18: Obligations of Investigative Consumer Reporting Agencies.

Info Cubic Ninja's summary

Consumer reporting agencies may not report criminal record information that did not result in a conviction. Non-convictions may not be reported. Additionally, consumer reporting agencies may not report criminal record information that is more than 7 years old.

(a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:

(1) Bankruptcies that, from the date of the order for relief, antedate the report by more than 10 years.

(2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years.

(3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years.

(4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement.

(5) Paid tax liens that, from the date of payment, antedate the report by more than seven years.

(6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years.

(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.

(8) Any other adverse information that antedates the report by more than seven years.

(b) The provisions of subdivision (a) are not applicable in either of the following circumstances:

(1) If the investigative consumer report is to be used in the underwriting of life insurance involving, or that may reasonably be expected to involve, an amount of two hundred fifty thousand dollars ($250,000) or more.

(2) If the investigative consumer report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for records that are prohibited by subdivision (a) when the employer is reviewing a consumer’s qualification for employment.

(c) Except as otherwise provided in Section 1786.28, an investigative consumer reporting agency shall not furnish an investigative consumer report that includes information that is a matter of public record and that relates to an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment, unless the agency has verified the accuracy of the information during the 30-day period ending on the date on which the report is furnished.

(d) An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted or who has knowledge of the item of information, unless either (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information, from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information.

California Labor Code §450 to 452

Info Cubic Ninja's summary

Employers are prohibited from requiring an employee or an applicant to pay for, and provide, their own background screening report. Employers cannot require an employee or an applicant to purchase anything of value.

450. (a) No employer, or agent or officer thereof, or other person, may compel or coerce any employee, or applicant for employment, to patronize his or her employer, or any other person, in the purchase of any thing of value.
(b) For purposes of this section, to compel or coerce the purchase of any thing of value includes, but is not limited to, instances where an employer requires the payment of a fee or consideration of any type from an applicant for employment for any of the following purposes:
(1) For an individual to apply for employment orally or in writing.
(2) For an individual to receive, obtain, complete, or submit an application for employment.
(3) For an employer to provide, accept, or process an application for employment.
451. Any person, or agent or officer thereof, who violates this article is guilty of a misdemeanor.
452. Nothing in this article shall prohibit an employer from prescribing the weight, color, quality, texture, style, form and make of uniforms required to be worn by his employees.

California Labor Code §222.5

Info Cubic Ninja's summary

Employers are prohibited from requiring any applicant to pay for, and provide, any of their own medical examinations or records.

No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.

Assembly Bill No. 1008: (Which repeals Section 432.9 of the Labor Code)

Info Cubic Ninja's summary

Private Employers with 5 or more employees may not inquire into an applicant’s criminal history until a conditional offer of employment has been made. Additionally, employers may not consider any of the following information when conducting a background check for employment purposes:

1) Arrests that did not result in a conviction
2) Referral to or participation in a pre- or post-trial diversion program
3) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated

If the employer intends to deny an applicant employment based on conviction history, they must perform an individualized assessment in order to determine whether the conviction directly and negatively relates to the specific job duties of the position. If after the assessment the employer still wishes to deny the applicant employment, they must follow an updated adverse action process, which includes:

1) Notifying the applicant of the preliminary decision in writing
2) Specifying the disqualifying conviction(s) that might cause this adverse action
3) Providing a copy of the background report
4) Explaining the applicant’s right to respond to the notice and provide any evidence of dispute, rehabilitation or mitigating circumstances and that they have 5 business days to respond.

If the applicant notifies the employer in writing within the first 5 days that they are disputing the conviction history reported, they will have an additional 5 business days to respond to the notice.

Finally, if the employer decides to move forward with denial of employment, they must:

1) Notify the applicant in writing of their decision
2) Notify the applicant of any procedure they have for the applicant to challenge the decision or request reconsideration
3) Notify the applicant of their right to file a complaint

(a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following:
(1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.
(2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment:
(A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code.
(B) Referral to or participation in a pretrial or posttrial diversion program.
(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
(4) To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(b) This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a).
(c) (1) (A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following:
(i) The nature and gravity of the offense or conduct.
(ii) The time that has passed since the offense or conduct and completion of the sentence.
(iii) The nature of the job held or sought.
(B) An employer may, but is not required to, commit the results of this individualized assessment to writing.
(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following:
(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
(B) A copy of the conviction history report, if any.
(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
(4) The employer shall consider information submitted by the applicant pursuant to paragraph (3) before making a final decision.
(5) If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following:
(A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
(B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
(C) The right to file a complaint with the department.
(d) This section does not apply in any of the following circumstances:

(1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
(2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
(3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
(4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).
(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.
(f) For purposes of this section:
(1) “Conviction” has the same meaning as defined in paragraphs (1) and (3) of subdivision (a) of Section 432.7 of the Labor Code.
(2) Notwithstanding paragraph (1), the term “conviction history” includes:
(A) An arrest not resulting in conviction only in the specific, limited circumstances described in subdivision (f) of Section 432.7 of the Labor Code, when an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, may ask an applicant for certain positions about specified types of arrests.
(B) An arrest for which an individual is out on bail or his or her own recognizance pending trial.

California Labor Code §432.8

Info Cubic Ninja's summary

Employers may not inquire about, or consider, certain convictions involving 28.5 grams (1 oz) of marijuana that are more than 2 years old, when making an employment decision.

The limitations on employers and the penalties provided for in Section 432.7 shall apply to a conviction for violation of subdivision (b) or (c) of Section 11357 of the Health and Safety Code or a statutory predecessor thereof, or subdivision (c) of Section 11360 of the Health and Safety Code, or Section 11364, 11365, or 11550 of the Health and Safety Code as they related to marijuana prior to January 1, 1976, or a statutory predecessor thereof, two years from the date of such a conviction.

California Labor Code §432.7(a) and §432.2(a)

Info Cubic Ninja's summary

When making an employment decision, employers may not consider criminal history information that did not result in a conviction. Employers may not consider criminal history information where the individual participated in a pre-trial or post-trial diversion program. This includes deferred sentences and adjudications withheld. Additionally, employers may not consider any juvenile proceedings or records in which the individual was still subject to juvenile court law.

432.2.
(a) No employer shall demand or require any applicant for employment or prospective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment. The prohibition of this section does not apply to the federal government or any agency thereof or the state government or any agency or local subdivision thereof, including, but not limited to, counties, cities and counties, cities, districts, authorities, and agencies.
(b) No employer shall request any person to take such a test, or administer such a test, without first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.

 

432.7.
(a) (1) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
(2) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while a person was subject to the process and jurisdiction of juvenile court law.
(3) For purposes of this section, “conviction” does not include, and shall not be construed to include, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.
(b) Nothing in this section shall prohibit the disclosure of the information authorized for release under Sections 13203 and 13300 of the Penal Code, to a government agency employing a peace officer. However, the employer shall not determine any condition of employment other than paid administrative leave based solely on an arrest report. The information contained in an arrest report may be used as the starting point for an independent, internal investigation of a peace officer in accordance with Chapter 9.7 (commencing with Section 3300) of Division 4 of Title 1 of the Government Code.
(c) In any case where a person violates this section, or Article 6 (commencing with Section 11140) of Chapter 1 of Title 1 of Part 4 of the Penal Code, the applicant may bring an action to recover from that person actual damages or two hundred dollars ($200), whichever is greater, plus costs, and reasonable attorney’s fees. An intentional violation of this section shall entitle the applicant to treble actual damages, or five hundred dollars ($500), whichever is greater, plus costs, and reasonable attorney’s fees. An intentional violation of this section is a misdemeanor punishable by a fine not to exceed five hundred dollars ($500).
(d) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law.
(e) Persons seeking employment or persons already employed as peace officers or persons seeking employment for positions in the Department of Justice or other criminal justice agencies as defined in Section 13101 of the Penal Code are not covered by this section.
(f) (1) Except as provided in paragraph (2), nothing in this section shall prohibit an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, from asking an applicant for employment either of the following:
(A) With regard to an applicant for a position with regular access to patients, to disclose an arrest under any section specified in Section 290 of the Penal Code.
(B) With regard to an applicant for a position with access to drugs and medication, to disclose an arrest under any section specified in Section 11590 of the Health and Safety Code.
(2) (A) An employer specified in paragraph (1) shall not inquire into information concerning or related to an applicant’s arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law, unless the information concerns an adjudication by the juvenile court in which the applicant has been found by the court to have committed a felony or misdemeanor offense specified in paragraph (1) that occurred within five years preceding the application for employment.
(B) Notwithstanding any other provision of this subdivision, an employer specified in paragraph (1) shall not inquire into information concerning or related to an applicant’s juvenile offense history that has been sealed by the juvenile court.
(3) An employer seeking disclosure of offense history under paragraph (2) shall provide the applicant with a list describing the specific offenses under Section 11590 of the Health and Safety Code or Section 290 of the Penal Code for which disclosure is sought.
(g) (1) No peace officer or employee of a law enforcement agency with access to criminal or juvenile offender record information maintained by a local law enforcement criminal or juvenile justice agency shall knowingly disclose, with intent to affect a person’s employment, any information contained therein pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information.
(2) No other person authorized by law to receive criminal or juvenile offender record information maintained by a local law enforcement criminal or juvenile justice agency shall knowingly disclose any information received therefrom pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information.
(3) No person, except those specifically referred to in Section 1070 of the Evidence Code, who is not authorized by law to receive or possess criminal or juvenile justice records information maintained by a local law enforcement criminal or juvenile justice agency, pertaining to an arrest or other proceeding that did not result in a conviction, including information pertaining to a referral to, and participation in, any pretrial or posttrial diversion program, shall knowingly receive or possess that information.
(h) “A person authorized by law to receive that information,” for purposes of this section, means any person or public agency authorized by a court, statute, or decisional law to receive information contained in criminal or juvenile offender records maintained by a local law enforcement criminal or juvenile justice agency, and includes, but is not limited to, those persons set forth in Section 11105 of the Penal Code, and any person employed by a law enforcement criminal or juvenile justice agency who is required by that employment to receive, analyze, or process criminal or juvenile offender record information.
(i) Nothing in this section shall require the Department of Justice to remove entries relating to an arrest or detention not resulting in conviction from summary criminal history records forwarded to an employer pursuant to law.
(j) As used in this section, “pretrial or posttrial diversion program” means any program under Chapter 2.5 (commencing with Section 1000) or Chapter 2.7 (commencing with Section 1001) of Title 6 of Part 2 of the Penal Code, Section 13201 or 13352.5 of the Vehicle Code, Sections 626, 626.5, 654, or 725 of, or Article 20.5 (commencing with Section 790) of Chapter 2 of Part 1 of Division 2 of, the Welfare and Institutions Code, or any other program expressly authorized and described by statute as a diversion program.
(k) (1) Subdivision (a) shall not apply to any city, city and county, county, or district, or any officer or official thereof, in screening a prospective concessionaire, or the affiliates and associates of a prospective concessionaire for purposes of consenting to, or approving of, the prospective concessionaire’s application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest.
(2) For purposes of this subdivision the following terms have the following meanings:
(A) “Screening” means a written request for criminal or juvenile history information made to a local law enforcement agency.
(B) “Prospective concessionaire” means any individual, general or limited partnership, corporation, trust, association, or other entity that is applying for, or seeking to obtain, a public agency’s consent to, or approval of, the acquisition by that individual or entity of any beneficial ownership interest in any public agency’s concession, lease, or other property right whether directly or indirectly held. However, “prospective concessionaire” does not include any of the following:
(i) A lender acquiring an interest solely as security for a bona fide loan made in the ordinary course of the lender’s business and not made for the purpose of acquisition.
(ii) A lender upon foreclosure or assignment in lieu of foreclosure of the lender’s security.
(C) “Affiliate” means any individual or entity that controls, or is controlled by, the prospective concessionaire, or who is under common control with the prospective concessionaire.
(D) “Associate” means any individual or entity that shares a common business purpose with the prospective concessionaire with respect to the beneficial ownership interest that is subject to the consent or approval of the city, county, city and county, or district.
(E) “Control” means the possession, direct or indirect, of the power to direct, or cause the direction of, the management or policies of the controlled individual or entity.
(l) (1) Nothing in subdivision (a) shall prohibit a public agency, or any officer or official thereof, from denying consent to, or approval of, a prospective concessionaire’s application for, or acquisition of, any beneficial interest in a concession, lease, or other property interest based on the criminal history information of the prospective concessionaire or the affiliates or associates of the prospective concessionaire that show any criminal conviction for offenses involving moral turpitude. Criminal history information for purposes of this subdivision includes any criminal history information obtained pursuant to Section 11105 or 13300 of the Penal Code.
(2) In considering criminal history information, a public agency shall consider the crime for which the prospective concessionaire or the affiliates or associates of the prospective concessionaire was convicted only if that crime relates to the specific business that is proposed to be conducted by the prospective concessionaire.
(3) Any prospective concessionaire whose application for consent or approval to acquire a beneficial interest in a concession, lease, or other property interest is denied based on criminal history information shall be provided a written statement of the reason for the denial.
(4) (A) If the prospective concessionaire submits a written request to the public agency within 10 days of the date of the notice of denial, the public agency shall review its decision with regard to any corrected record or other evidence presented by the prospective concessionaire as to the accuracy or incompleteness of the criminal history information utilized by the public agency in making its original decision.
(B) The prospective concessionaire shall submit the copy or the corrected record of any other evidence to the public agency within 90 days of a request for review. The public agency shall render its decision within 20 days of the submission of evidence by the prospective concessionaire.
(m) Paragraph (1) of subdivision (a) does not prohibit an employer from asking an applicant about a criminal conviction of, seeking from any source information regarding a criminal conviction of, utilizing as a factor in determining any condition of employment of, or entry into a pretrial diversion or similar program by, the applicant if, pursuant to Section 1829 of Title 12 of the United States Code or any other state or federal law, any of the following apply:
(1) The employer is required by law to obtain information regarding a conviction of an applicant.
(2) The applicant would be required to possess or use a firearm in the course of his or her employment.
(3) An individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.
(4) The employer is prohibited by law from hiring an applicant who has been convicted of a crime.

California Labor Code §1024.5: Employer Use of Consumer Credit Reports.

Info Cubic Ninja's summary

Employers are prohibited from obtaining an applicant’s credit report for employment purposes unless the position meets one of the exceptions listed in this section. The open position must follow one of these exceptions:
(1) a managerial position,
(2) a position in the State Department of Justice,
(3) a sworn peace office or other law enforcement position,
(4) a position for which a credit report is required by law,
(5) a position that involves access to others’ highly sensitive personal information,
(6) a position where one has fiduciary duties on behalf of the employer,
(7) a position where one has the authority to enter into financial contracts on behalf of the employer,
(8) a position where one has access to confidential business information, or
(9) a position with a financial institution.

(a) An employer or prospective employer shall not use a consumer credit report for employment purposes unless the position of the person for whom the report is sought is any of the following:
(1) A managerial position.
(2) A position in the state Department of Justice.
(3) That of a sworn peace officer or other law enforcement position.
(4) A position for which the information contained in the report is required by law to be disclosed or obtained.
(5) A position that involves regular access, for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, to all of the following types of information of any one person:
(A) Bank or credit card account information.
(B) Social security number.
(C) Date of birth.
(6) A position in which the person is, or would be, any of the following:
(A) A named signatory on the bank or credit card account of the employer.
(B) Authorized to transfer money on behalf of the employer.
(C) Authorized to enter into financial contracts on behalf of the employer.
(7) A position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process or trade secret that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who may obtain economic value from the disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information.
(8) A position that involves regular access to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client, during the workday.
(b) This section does not apply to a person or business subject to Sections 6801 to 6809, inclusive, of Title 15 of the United States Code and state and federal statutes or regulations implementing those sections if the person or business is subject to compliance oversight by a state or federal regulatory agency with respect to those laws.
(c) The following definitions apply to this section:
(1) “Consumer credit report” has the same meaning as defined in subdivision (c) of Section 1785.3 of the Civil Code, but does not include a report that (A) verifies income or employment, and (B) does not include credit-related information, such as credit history, credit score, or credit record.
(2) “Managerial position” means an employee covered by the executive exemption set forth in subparagraph (1) of paragraph (A) of Section 1 of Wage Order 4 of the Industrial Welfare Commission (8 Cal. Code Regs. 11040).

California Labor Code §980: Employer Use of Social Media.

Info Cubic Ninja's summary

Employers may not directly or indirectly require an applicant or an employee to disclose their login credentials that provides access to their social media accounts. Employers cannot require an applicant to alter their account settings so that third parties may gain access to additional information, and employers may not require an applicant to access their social media accounts in the employer’s presence.

(a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.
(b) An employer shall not require or request an employee or applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in subdivision (c).
(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

California Penal Code § 290.46: Sex Offenders (also known as Megan's Law).

Info Cubic Ninja's summary

Employers in California may not use the California Sex Offender Website for employment purposes. This includes background screenings for employment purposes. The information on the website may only be used to protect a person at risk. The California Attorney General suggests, “before using the information disclosed on [the California Sex Offender Website], you may want to consult with an attorney or merely suggest to others that they view the website for themselves.” Clients should consult with qualified legal counsel to determine if their purpose for accessing this registry meets any exceptions within the applicable laws.

(a) (1) On or before the dates specified in this section, the Department of Justice shall make available information concerning persons who are required to register pursuant to Section 290 to the public via an Internet Web site as specified in this section. The department shall update the Internet Web site on an ongoing basis. All information identifying the victim by name, birth date, address, or relationship to the registrant shall be excluded from the Internet Web site. The name or address of the person’s employer and the listed person’s criminal history other than the specific crimes for which the person is required to register shall not be included on the Internet Web site. The Internet Web site shall be translated into languages other than English as determined by the department.

[. . .]

(l) (1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.
(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business establishment.
(3) This section shall not affect authorized access to, or use of, information pursuant to, among other provisions, Sections 11105 and 11105.3, Section 8808 of the Family Code, Sections 777.5 and 14409.2 of the Financial Code, Sections 1522.01 and 1596.871 of the Health and Safety Code, and Section 432.7 of the Labor Code.
(4) (A) Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney’s fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).
(B) Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information available via an Internet Web site established pursuant to this section in violation of paragraph (2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of any other remedies or procedures that may be available to an aggrieved party under other provisions of law, including Part 2 (commencing with Section 43) of Division 1 of the Civil Code.

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

California Ban the Box (Law AB 1008: Employment discrimination: conviction history.)

Effective January 1, 2018, Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Additionally, an employer may not deny an applicant a position due to a criminal conviction without first performing an individualized assessment regarding the circumstances of that conviction. This individualized assessment would fall regular EEOC standards.

If an employer is going to take adverse action against an employee or applicant, the employer must identify the specific criminal record(s) that cause concern, and allow the individual to respond. This requirement is in addition to the FCRA requirements for adverse action.

Los Angeles Ban the Box

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has received a conditional offer of employment.

San Francisco Ban the Box

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has attended their first live interview, the candidate has received a conditional offer of employment.


Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Court Fee

County: Court Fee: County: Court Fee: County: Court Fee:
Alameda $0.00 Alpine $15.00 Amador $0.00
Butte $0.00 Calaveras $0.00 Colusa $5.00
Contra Costa $0.00 Del Norte $15.00 El Dorado $0.00
Fresno $0.00 Glenn $15.00 Humboldt $0.00
Imperial $15.00 Inyo $15.00 Kern $0.00
Kings $0.00 Lake $0.00 Lassen $15.00
Los Angeles $5.00 Madera $0.00 Marin $0.00
Mariposa $15.00 Mendocino $15.00 Merced $0.00
Modoc $15.00 Mono $15.00 Monterey $0.00
Napa $0.00 Nevada $0.00 Orange $0.00
Placer $0.00 Plumas $15.00 Riverside $0.00
Sacramento $0.00 San Benito $0.00 San Diego $0.00
San Bernardino $0.00 San Francisco $0.00 San Joaquin $0.00
San Luis Obispo $4.00 San Mateo $0.00 Santa Barbara $0.00
Santa Clara $0.00 Santa Cruz $0.00 Shasta $0.00
Sierra $0.00 Siskiyou $0.00 Solano $0.00
Sonoma $0.00 Stanislaus $0.00 Sutter $0.00
Tehama $0.00 Trinity $0.00 Tulare $0.00
Tuolumne $0.00 Ventura $0.00 Yolo $0.00
Yuba $0.00 $0.00 $0.00 $0.00 $0.00

State of California - Consumer Rights Notice

You have a right to obtain a copy of your credit file from a consumer credit reporting agency. You may be charged a reasonable fee not exceeding eight dollars ($8). There is no fee, however, if you have been turned down for credit, employment, insurance, or a rental dwelling because of information in your credit report within the preceding 60 days. The consumer credit reporting agency must provide someone to help you interpret the information in your credit file.

You have a right to dispute inaccurate information by contacting the consumer credit reporting agency directly. However, neither you nor any credit repair company or credit service organization has the right to have accurate, current, and verifiable information removed from your credit report. Under the Federal Fair Credit Reporting Act, the consumer credit reporting agency must remove accurate, negative information from your report only if it is over seven years old. Bankruptcy information can be reported for 10 years.

If you have notified a consumer credit reporting agency in writing that you dispute the accuracy of information in your file, the consumer credit reporting agency must then, within 30 business days, reinvestigate and modify or remove inaccurate information. The consumer credit reporting agency may not charge a fee for this service. Any pertinent information and copies of all documents you have concerning an error should be given to the consumer credit reporting agency.

If reinvestigation does not resolve the dispute to your satisfaction, you may send a brief statement to the consumer credit reporting agency to keep in your file, explaining why you think the record is inaccurate. The consumer credit reporting agency must include your statement about disputed information in a report it issues about you.

You have a right to receive a record of all inquiries relating to a credit transaction initiated in 12 months preceding your request. This record shall include the recipients of any consumer credit report.

You may request in writing that the information contained in your file not be provided to a third party for marketing purposes. You have a right to place a “security alert” in your credit report, which will warn anyone who receives information in your credit report that your identity may have been used without your consent. Recipients of your credit report are required to take reasonable steps, including contacting you at the telephone number you may provide with your security alert, to verify your identity prior to lending money, extending credit, or completing the purchase, lease, or rental of goods or services. The security alert may prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that taking advantage of this right may delay or interfere with the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, or cellular phone or other new account, including an extension of credit at point of sale. If you place a security alert on your credit report, you have a right to obtain a free copy of your credit report at the time the 90-day security alert period expires. A security alert may be requested by calling the following tollfree telephone number: (Insert applicable toll-free telephone number). California consumers also have the right to obtain a “security freeze.”

You have a right to place a “security freeze” on your credit report, which will prohibit a consumer credit reporting agency from releasing any information in your credit report without your express authorization. A security freeze must be requested in writing by mail. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that using a security freeze to take control over who gets access to the personal and financial information in your credit report may delay, interfere with, or prohibit the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, or cellular phone or other new account, including an extension of credit at point of sale.

When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report for a specific party or period of time after the freeze is in place.

To provide that authorization you must contact the consumer credit reporting agency and provide all of the following:

  1. The personal identification number or password.
  2. Proper identification to verify your identity.
  3. The proper information regarding the third party who is to receive the credit report or the period of time for which the report shall be available to users of the credit report.

A consumer credit reporting agency must authorize the release of your credit report no later than three business days after receiving the above information.

A security freeze does not apply when you have an existing account and a copy of your report is requested by your existing creditor or its agents or affiliates for certain types of account review, collection, fraud control, or similar activities.

If you are actively seeking credit, you should understand that the procedures involved in lifting a security freeze may slow your application for credit. You should plan ahead and lift a freeze, either completely if you are shopping around, or specifically for a certain creditor, before applying for new credit.

A consumer credit reporting agency may not charge a fee to a consumer for placing or removing a security freeze if the consumer is a victim of identity theft and submits a copy of a valid police report or valid Department of Motor Vehicles investigative report. A person 65 years of age or older with proper identification may be charged a fee of no more than $5 for placing, lifting, or removing a security freeze. All other consumers may be charged a fee of no more than $10 for each of these steps.

You have a right to bring civil action against anyone, including a consumer credit reporting agency, who improperly obtains access to a file, knowingly or willfully misuses file data, or fails to correct inaccurate file data.

If you are a victim of identity theft and provide to a consumer credit reporting agency a copy of a valid police report or a valid investigative report made by a Department of Motor Vehicles investigator with peace officer status describing your circumstances, the following shall apply:

  1. You have a right to have any information you list on the report as allegedly fraudulent promptly blocked so that the information cannot be reported. The information will be unblocked only if (A) the information you provide is a material misrepresentation of the facts, (B) you agree that the information is blocked in error, or (C) you knowingly obtained possession of goods, services, or moneys as result of the blocked transactions. If blocked information is unblocked, you will be promptly notified.
  2. Beginning July 1, 2003, you have a right to receive, free of charge and upon request, one copy of your credit report each month for up to 12 consecutive months.

Court Cases

KEY COURT DECISIONS
Court Case Issue Outcome Employer Limitation/ Action

In re Spokeo (FTC Matter/File Number 1023163 [June 12, 2012])

Is Spokeo a CRA, and what constitutes a CRA? Yes, Spokeo is a CRA because a CRA is anyone regularly engaged in, in whole or in part, the purposes of preparing consumer reports.

Settlement. Spokeo paid an $800K civil penalty; they were enjoined from all violations in the FTC’s complaint; 20-year program of complaince monitoring, record keeping, and reporting to the FTC.

Ensure that both you, and the CRA whose services you use, are following proper FCRA procedures when procuring a consumer report. Spokeo advertised their services to HR professionals making employment decisions, and even had a portion of their website dedicated to such. Even though they were advertising to employers, they did not follow the regulations set forth by the FCRA. Employers should vet their background screening provider to ensure FCRA compliance.

Robins v. Spokeo, Inc. (2017)

Is inaccurate information that could potentially prevent an individual from finding employment considered harmful to the individual? Yes, the FCRA was created to protect consumers’ concrete interest in accurate reporting of information about themselves. Reporting inaccurate information violates section 1681e(b) of the FCRA and poses a material risk of harm to consumers’ concrete interest.

The Supreme Court found in favor of Robins. Spokeo operates a website that provides information about individuals such as contact information, family information, age, occupation, certain types of economic information, etc. Robins sued Spokeo claiming the company violated the FCRA by publishing false information about him on the website. The lower courts held that Robins could not show that he actually suffered an injury, but the Supreme Court disagreed. The Supreme Court held that consumers have a concrete interest in accurate reporting, and inaccurate information such as the kind that was reported about Robins, is harmful to the consumer.

Consumer reporting agencies must have strict procedures in place to ensure maximum accuracy is achieved in their consumer reports. Employers should vet their background screening provider to ensure FCRA compliance.

Syed v. M-I, LLC (2017)

Can a liability waiver, or language amounting to be a liability waiver, be included within the disclosure or authorization form? No, a liability waiver may not be present in either a disclosure or an authorization form. All forms must be separate, and the presence of a liability waiver form is prohibited. The FCRA is intended to protect the applicant and their right to privacy, but a liability waiver does the exact opposite. The waiver forces the applicant to give up their rights.

The Court found in favor of Syed. Syed was given a form to sign by a prospective employer titled “Pre-Employment Disclosure Release.” This form served as the disclosure, the authorization, and a liability waiver. Syed claimed he was given far too much information at one time and did not understand what he was signing. The Court held that the inclusion of a liability waiver amounted to a willful violation of the FCRA’s requirement that the disclosure be in a document that “consists solely of the disclosure.” Additionally, the Court held that the FCRA’s language does not allow for a liability waiver to be included in the disclosure document. The Court reasons that the FCRA is intended to protect the applicant and their right to privacy, but a liability waiver does the exact opposite. The waiver forces the applicant to give up their rights. Furthermore, the injury that Syed suffered was that he was deprived of his ability to meaningfully authorize the consumer report. Since he could not have meaningfully consented to the consumer report, the consumer report was improper.

Employers must ensure that their disclosure form and their authorization forms are separated from any other form. Some Courts have recognized that the FCRA allows the disclosure and authorization to be on one form. However, inclusion of a liability waiver is NOT an extension of an authorization form. Any other forms must be separate. It is still best practice to keep the disclosure form separate from the authorization form and ensure that there is no language amounting to a liability waiver. Employers should also ensure that other forms do not include any inadvertent authorizations to consumer reports.

Burnthorne-Martinez v. Sephora

Plaintiff claims that the online form they received as the disclosure and authorization form included extraneous information, and that this form was not separate from others. The issue here is, when is a web page considered a single page, and when is it considered multiple pages?

Case Pending. Court notes that there is a lack of authority in interpreting the FCRA and the requirement of the disclosure form consisting solely of the disclosure if it appears on an interactive webpage.

Employers must ensure that their disclosure form consists solely of the disclosure as required by the FCRA, even if using an electronic application.

Hawkins v. S2Verify

S2Verify provided a special set of clients with background screening reports that included non-conviction information beyond 7 years old. S2Verify stated these clients were exceptions because they showed legal need for that information.

Certified Class Action. Hawkins was lead plaintiff in this class action lawsuit.

Employers need to vet their CRA services. CRA’s need to ensure they do not report information in violation of the FCRA.

Feist et al v. Petco Animal Supplies, Inc. et al

The consent form the plaintiff received contained 35 paragraphs providing the disclosure and related information, such as: an authorization allowing other entities to disclose information about the applicant, a summary of consumer rights in seven different states, a summary of consumer rights under the FCRA, and a list of entities that enforce the FCRA. Plaintiffs allege that the Consent Form violates an FCRA requirement that the disclosure be made “in a document that consists solely of the disclosure.”

Case Pending. Feist is the lead plaintiff for this class action.

Employers must ensure that their disclosure form consists solely of the disclosure as required by the FCRA.

Coleman v. Kohl’s Dep’t Stores, Inc.

Plaintiff claimed that Kohl’s unlawfully combined the Consent and Disclosure forms rather than keeping those documents separate as required by the FCRA. They claim that all these forms were contained in one large application packet.

Dismissed. Court held that the forms were separate. They were on separate sheets of paper. The fact that these papers were compiled into a large packet does not mean these two separate papers and forms were now combined.

Employers must ensure that they adhere to strict procedures regarding disclosure and authorization.

Mejia v. Chipotle Mexican Grill, Inc. et al.

Plaintiff claims Chipotle has violated the FCRA in their application documents by asking applicants to sign their consent for background checks that was hidden within a general consent form.

Certified Class Action. Mejia was lead plaintiff in this class action lawsuit.

Employers must ensure that their disclosure form consists solely of the disclosure as required by the FCRA.

Lagos v. Leland Standford Junior Univ

Plaintiff claims that the employer did not properly disclose the screening report nor obtain proper authorization from the plaintiff. Plaintiff states that the disclosure form did not consist solely of the disclosure.

Case Pending. Settlement offered. Lagos is the lead plaintiff in this class action lawsuit.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization.

Lee v. Checkr, Inc.

Plaintiff alleges that Checkr prepared consumer reports with inaccuracies about the plaintiff’s criminal history (including convictions in FL) which barred him from finding employment. This report was sent to multiple employers. Plaintiff claims Checkr violated the FCRA by not following section 613 procedures.

Settlement. Lee is the lead plaintiff in this class action lawsuit.

Employers must review the entire background screening report on an applicant before making a hiring decision, and must follow proper adverse action procedures if making a negative hiring decision. CRA’s must ensure they have strict procedures in place to ensure maximum possible accuracy or send 613 notification letters to consumers.

Lee v. Hertz/Dollar Thrifty Automotive Group, Inc.

Plaintiff claims that Hertz never provided the plaintiffs with a disclosure that it may obtain consumer reports and did not receive the plaintiffs’ authorization for such reports, thus violating the FCRA.

Dismissed. Court held that the plaintiffs did not suffer a concrete injury.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

Aceves Jr. et al. v. Autozone Inc.

Plaintiff claims AutoZone unlawfully ran credit checks on over 200,000 applicants during the course of its hiring process. Plaintiffs claim that AutoZone “failed to properly provide pre-authorization disclosures by embedding its pre-authorization form as a window within a multi-webpage employment application which contained unrelated information and omitted the required disclosures.”

Settlement of $5.7M. Aceves was the lead plaintiff in this class action lawsuit.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

Berrellez v. Pontoon Solutions, Inc. et al.

Plaintiff claims that Pontoon obtained a consumer report about the plaintiff without following the disclosure and authorization requirements set forth by the FCRA. Plaintiff also claims he was not informed of his right to receive a summary of his rights, thus violating the FCRA.

Summary Judgment found in favor of the defendant. Berrellez could not show he suffered a harm based on the conduct of the defendant. Berrellez’s claims were based entirely on a disclosure and authorization form that he never signed and upon which no defendant took action, any legal failures in that release were unrelated to his alleged injuries. Also found that the claims were barred by the FCRA’s 2 year statute of limitations

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization.

Brown et al v. Lowe’s Companies Inc, et al.

Plaintiff claims Lowe’s disclosure and authorization formed also contained a liability waiver, which violates the FCRA’s requirement of having a separate form. Plaintiff also claimed Lowe’s did not follow proper adverse action procedures.

Settlement of $2.2M. Brown was the lead plaintiff in this class action lawsuit.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization, as well as, adverse action.

Randy Pitre v. Wal-Mart Stores Inc

Plaintiffs allege that Wal-Mart did not provide him and others applying for jobs at Wal-Mart with proper disclosures before initiating a background screening report.

Case Pending.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

McComack v. Marriott Ownership Resorts, Inc.

Plaintiff alleges that Marriott included a liability release within their disclosure form and the disclosure did not consist solely of the disclosure. There were other claims included regarding labor laws.

Case Pending.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

Nesbitt v. Postmates, Inc.

Plaintiff alleges that Postmates’ disclosures was a ten page document containing extraneous information. It did not consist of solely the disclosure.

Settlement of $2.5 Million.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

HAVE A QUESTION ABOUT
California BACKGROUND CHECKS?

LEARN MORE

TO PAGETOP