By Pam Devata and Dana Howells

Previously in this three-part series, we discussed employer obligations concerning background checks furnished by investigative consumer reporting agencies.  In this third and final segment, we highlight the requirements for California employers who do their own background checks without utilizing the services of a consumer reporting agency. 

Public Records Searches and Disclosure Obligations.  In the Internet age, many types of public records are instantly searchable. Employers who do their own public records searches (either on-line or using old fashioned techniques) must beware of a little-known California law.  Civil Code Section 1786.53(a)  provides broadly that any person who uses personal background information—even information that is a matter of public record—for employment purposes must provide that information to the consumer within 7 days.  “Public records” are defined as records documenting an arrest, indictment, conviction, civil judicial action, tax lien or judgment.

Here’s the most peculiar twist:  the obligation to provide the public records exists regardless of whether the employer obtained actual copies of  public records or simply obtained a verbal summary of the contents.  

  • For example, an in-house researcher may give a verbal report that an applicant has convictions instead of obtaining hard copies of the court records.  Does the employer have any disclosure obligations?  
    • Arguably, yes.  Civil Code Section 1786.53 requires that “a copy of the related public record” be given to the applicant within seven days “regardless of whether the information was received in written or oral form.”
  • What about employers who receive reports from fingerprint databases, such as the FBI or the Department of Justice, that are not generally accessible by the public?
    • Arguably, these reports in and of themselves are not “matters of public record” under Section 1786.53.  However, if an employer does follow-up research (e.g., to determine whether an arrest reported on the fingerprint “rap sheet” resulted in a conviction), public records from the follow-up research would likely be covered by Civil Code Section 1786.53.

Check Box Waiver is Limited. Section 1786.53(b)(2) provides for a “check box” on a job application (or any other written form) which, if checked, waives the applicant’s or employee’s right to a copy of any public record obtained.  Any such waiver, however, is effective only until “adverse action” is taken based on the public records.  If the record is used as the basis for adverse action, the employer must provide the public record(s) regardless of whether the applicant or employee previously checked the box.  “Adverse action” means denial of employment or any decision which adversely affects any current or prospective employee. 

Investigations Are Different.  A limited exception to the 7 day deadline for providing public records exists for investigations into wrongdoing.  Sending copies of  the public records can wait until after  the investigation is completed—but under this exception, the public records need to be turned over to the subject of the investigation even if there is no adverse action.  A 2005 case held that public records must be made available to the consumer within a “reasonable” time after an investigation, and that eight business days after the conclusion of the investigation was reasonable where the employer acted quickly.

Arrests, Detentions and Diversions Not Usable.  In California employers should not seek out arrest records that have not resulted in a conviction.  Our Labor Code (Section 432.7), states that arrests and detentions that do not result in convictions (including arrests resulting in participation in pre-trial or post-trial diversion programs) must not be considered at all for employment purposes (with a few narrow exceptions).  Absent an exception, employers are not allowed to:

  • ask about arrests or detentions not resulting in convictions,
  • seek information about such arrests from any source, or
  • use information about arrests or detentions  not resulting in a conviction to make any employment decision.

Exceptions exist for certain types of arrests for peace officers, health care employees, and employees with access to medications.  In addition, employers must not ask about convictions for many marijuana possession offenses more than two years old under California Labor Code Section 432.8.

Other restrictions on use of criminal history for employment.   

  • Adverse Impact.  Under an EEOC guidance released in 2012, criminal history screening practices must be job-related and consistent with business necessity.  The EEOC’s rationale is that using criminal history as a selection criterion has an unfair disproportionate impact on certain racial and ethnic groups.  Per the EEOC’s guidance, employers should make individualized assessments, taking into account the nature and gravity of the offense, the time that has passed since the offense or completion of the sentence, and the nature of the job.
  • Ban the Box.  Effective July 1, 2014, California has a new law limiting when state and local agencies can request criminal history information.  This “ban the box” legislation forbids government agencies from asking about convictions on employment applications. A state or local agency may not ask an applicant about criminal conviction history until after the agency determines the applicant meets the minimum employment qualifications stated in any notice/posting issued for the positions.  There are exceptions, such as where a criminal history background check is required by law for the position.  California Labor Code Section 432.9.
  • Sex Offender Information.  Penal Code 290.46 forbids employers to refuse to hire or fire based on the employee’s listing on the California Megan’s Law website of registered sex offenders.  Employees and applicants aggrieved by misuse of Megan’s law information may sue for actual damages, punitive damages, and a civil penalty of up to $25,000.
  • San Francisco’s Fair Chance Ordinance.  Part 2 of this series contains information about San Francisco’s new ordinance on use of criminal history.  The Ordinance impacts covered employers who seek criminal history both (1) substantively (certain offenses may not be considered) and (2) procedurally (requires pre-adverse action notice with copy of the report, specifics about which parts of report are considered disqualifying, and a reconsideration process).  Unlike Civil Code Section 1786.53, the San Francisco Ordinance defines “Background Check Report” very broadly to include any criminal report produced by the California Department of Justice, the Federal Bureau of Investigation, other law enforcement or police agencies, or courts.  This definition includes fingerprint “rap sheets” (nonpublic information) and seemingly requires the “criminal report” to be given to the employee or applicant if adverse action is contemplated.

Workplace solutions:  A simple thing like researching on-line public records can get complicated in California.  Employers need to be aware of the compliance obligations that–perhaps unexpectedly–come with DIY public records searches.  Because this area of hiring is fraught with potential landmines, employers are well advised to obtain counsel before adopting background check protocols.  Seyfarth’s experts in this area are always happy to assist.

Edited by Julie Yap