Background Checks

Background checks are a routine part of the hiring process for many employers and essential for ensuring that companies hire qualified and trustworthy individuals. However, they are also governed by strict laws in California designed to protect the rights of job applicants. Employers who conduct background checks must comply with these laws to avoid legal liability in an Orange County hiring discrimination lawsuit.

What Are the Rules on Criminal Records Checks?

In California, employers must follow specific rules when conducting criminal background checks to ensure that they do not unlawfully discriminate against job applicants. These rules are primarily governed by the following laws:

California Fair Chance Act

The California Fair Chance Act, often referred to as the state’s “Ban the Box” law, went into effect in January 2018 and prohibits most employers from asking about an applicant’s criminal history on job applications. Under this law, employers with five or more employees cannot inquire into or consider an applicant’s criminal history until after making a conditional offer of employment. This provides job applicants with a fair chance to be evaluated based on their qualifications and experience before their criminal record is considered.

Once an employer makes a conditional offer of employment, they may conduct a criminal background check, but there are limitations:

• Individualized Assessment: Employers must conduct an individualized assessment to determine whether the applicant’s criminal history has a direct and adverse relationship with the specific job duties. The assessment must consider factors such as the nature of the offense, how long ago it occurred, and whether the applicant has shown evidence of rehabilitation.
• Notice and Opportunity to Respond: If an employer intends to revoke a job offer based on criminal history, they must provide the applicant with written notice, a copy of the background check report, and an opportunity to respond. The applicant has at least five business days to challenge the accuracy of the information or provide evidence of rehabilitation or mitigating circumstances.
• Final Decision: After considering the applicant’s response, the employer must provide a final written decision explaining whether the job offer will be revoked.

Fair Credit Reporting Act (FCRA)

The federal Fair Credit Reporting Act (FCRA) governs how employers can use consumer reports, including background checks, in hiring decisions. Under the FCRA, if an employer uses a third-party background check company (also known as a consumer reporting agency) to conduct a criminal background check, they must:

• Notify the applicant in writing and obtain their consent before conducting the check.
• Provide the applicant with a copy of the background check report and a summary of their rights under the FCRA if the employer plans to take adverse action (such as denying employment) based on the report.

Failure to comply with the FCRA can result in legal consequences for employers, including fines and lawsuits.

California’s Labor Code Section 432.7

Employers are prohibited from asking about or using information related to an individual’s arrests that did not lead to convictions, participation in pretrial or post trial diversion programs, or any arrests where the charges were dismissed. It also prevents employers from using such information as a basis for hiring, promoting, or terminating an employee.

Why Verify Employment History?

There are several reasons why employment verification is important:

Preventing Resume Fraud

Some job applicants may exaggerate or falsify details on their resumes, such as job titles, dates of employment, and responsibilities. By verifying employment history, employers can ensure that the candidate is being honest about their work experience. 

Assessing Job Performance

Some employers may choose to contact previous supervisors or managers to ask about the applicant’s work ethic, attitude, and ability to meet job expectations. 

Ensuring Stability and Accountability

If an applicant has frequent job changes or unexplained gaps in employment, it may raise questions about their reliability and commitment to long-term employment. While job changes are common, especially in certain industries, employers may want to explore the reasons for these transitions before making a hiring decision.

Reducing Legal Risks

Hiring unqualified or dishonest employees can expose employers to various legal risks, especially in industries that require specific certifications or qualifications. For example, hiring someone for a role in healthcare or finance without properly verifying their credentials or experience could lead to compliance violations, lawsuits, or reputational damage for the employer.

Former employers are generally not required to provide details about a previous employee’s performance or reason for termination. They can choose to confirm only basic information, such as job titles and dates of employment, to avoid defamation claims.

How Can an Attorney Help?

If you believe that your rights have been violated during the background check process in California, an experienced Orange County employment lawyer can help in the following ways:

Investigating Violations of Background Check Laws

An attorney can help you determine whether your prospective employer complied with these laws during the hiring process. If the employer violated your rights, an attorney can help you file a complaint or pursue legal action. For example, if an employer asked about your criminal history before extending a conditional job offer or failed to provide you with an opportunity to respond to a negative background check, you may have grounds to challenge the employer’s actions.

Filing a Complaint for Employment Discrimination

Background check violations often go hand-in-hand with employment discrimination. If you believe that an employer discriminated against you based on your criminal record, race, gender, or other protected characteristics, an attorney can help you file a complaint with the California Civil Rights Department (CRD) or the Equal Employment Opportunity Commission (EEOC). 

Challenging Inaccurate Background Checks

Inaccurate information in a background check can result in a job denial or damage to your professional reputation. If a background check contains errors, such as incorrect criminal records or inaccurate employment history, an attorney can help you challenge the accuracy of the report and demand corrections. This is particularly important when employers rely on third-party background check companies, which can sometimes provide outdated or incorrect information.

Pursuing Legal Action for FCRA Violations

If an employer violated the Fair Credit Reporting Act during the background check process, such as by failing to obtain your consent or provide you with a copy of the background check report, you may be entitled to compensation. An attorney can help you pursue a lawsuit against the employer or the background check company for FCRA violations, seeking damages for any harm caused.

Contact Us Today

Background checks are an essential part of the hiring process, but they must be conducted in compliance with California and federal laws. If you believe that your rights were violated during a background check, arrange a free consultation with our Orange County Employment Lawyer.  We can help you understand your options and take the appropriate steps to protect your rights.