Employment background checks are a common part of the hiring process. However, for employees in California, there are specific laws that regulate how these checks can be conducted, what information can be included, and the rights of applicants during the process. Knowing these regulations can help employees protect their rights and take the necessary steps if they believe a background check has led to wrongful termination or discrimination.
Understanding Background Checks in California
In California, background checks can include information about an applicant’s criminal history, credit history, employment history, education, and more. However, employers must follow state and federal regulations when conducting these checks. For instance, the Fair Credit Reporting Act (FCRA) requires employers to obtain written consent from an applicant before running a background check. Furthermore, California’s Investigative Consumer Reporting Agencies Act (ICRAA) sets additional rules regarding what employers can and cannot do with background information.
Key Regulations Governing Background Checks
Here are some key points employees should be aware of regarding background checks in California:
1. Ban the Box Law
California has a “ban the box” law, which prohibits employers with five or more employees from asking about an applicant’s criminal history on a job application. This law requires employers to wait until they have made a conditional job offer before conducting a background check for criminal records. This rule aims to give individuals with criminal histories a fair chance at employment without being automatically disqualified during the initial screening process.
2. Restrictions on Criminal Records
Even after a conditional offer is made, employers must follow specific rules when assessing an applicant’s criminal history. They must conduct an individualized assessment, taking into account the nature of the offense, the time that has passed since the offense, and whether the offense is related to the job. Employers cannot deny employment solely based on a past criminal record unless it is directly relevant to the position.
3. Consumer Credit Reports
Employers are restricted from using consumer credit reports (credit checks) as part of their hiring decisions, except under certain circumstances. For instance, credit checks may be allowed for positions that involve handling significant financial responsibilities, confidential information, or company funds.
4. Rights to Notice and Consent
Employees must be informed in writing that a background check will be conducted, and they must provide their consent. If an employer plans to take adverse action based on the results of a background check (e.g., rescinding a job offer), they must provide the applicant with a copy of the report and a written summary of their rights under state and federal law. The applicant then has the right to dispute any incorrect or misleading information.
How Background Checks Can Lead to Wrongful Termination
Sometimes, background checks can lead to issues of wrongful termination, especially when employers misuse or misinterpret the information. For example, if an employee is terminated because of a past criminal conviction that has no relevance to their job duties, this could be a case of wrongful termination. Similarly, if a background check reveals inaccurate information, and the employer uses that as a basis for termination, the employee may have grounds for legal action.
According to Azadian Law Group, PC, employees who believe they have been wrongfully terminated due to information obtained from a background check should consider consulting with an employment lawyer in Los Angeles. A skilled attorney can help determine whether an employer’s actions violated state or federal regulations and assist in seeking remedies.
Steps to Take if a Background Check Results in Adverse Action
If an employee faces adverse action, such as termination or rescission of a job offer, based on the results of a background check, they have rights under both California and federal law. Here are the steps employees should take:
- Request a Copy of the Report: Employees should request a copy of the background check report if they haven’t already received one. This will help them verify the accuracy of the information.
- Review the Notice of Rights: Employers must provide a summary of rights under the FCRA. Employees should carefully review this notice to understand their legal protections.
- Dispute Incorrect Information: If any information in the report is incorrect, employees can dispute it with the company that produced the report. They must notify the employer about the dispute and request time for the issue to be resolved.
- Consult an Employment Lawyer: If an employer proceeds with adverse action even after a dispute, it may be necessary to seek legal advice. Azadian Law Group, PC emphasizes that an employment lawyer in Los Angeles can provide essential guidance in such cases.
Common Violations in Background Check Procedures
Employers are not always fully compliant with background check regulations, which can lead to legal challenges. Some common violations include:
- Failure to Obtain Proper Consent: Employers must secure written consent before running a background check. Failing to do so can be grounds for legal action.
- Use of Irrelevant Criminal History: Employers cannot use irrelevant criminal convictions to disqualify candidates, particularly if the offense has no bearing on job performance.
- Failure to Provide Notice of Adverse Action: Employers are legally required to notify applicants if they intend to take adverse action based on background check findings. This includes giving the applicant a chance to respond or dispute the findings.
Employees should know that they have legal options if their rights are violated. Consulting with an employment lawyer can help clarify the situation and determine if any legal action is warranted.
Conclusion
Background checks are a standard part of the employment process, but they must be conducted within the boundaries of the law. Employers are required to follow strict guidelines to ensure that the rights of applicants and employees are protected. Knowing these rights is crucial for employees, especially if they believe their background information has been used inappropriately.
Employees in Los Angeles who are concerned about their background check results or feel they have been wrongfully terminated due to background information should seek advice from an experienced employment lawyer in Los Angeles. The legal professionals at Azadian Law Group, PC can assist in reviewing the situation, identifying any legal violations, and pursuing appropriate remedies.