If you’re applying for a job, or want to keep one, you’re going to have to accept that background checks are becoming a part of work life. An estimated 50% of resumes submitted by job applicants contain false or inaccurate information. Bad employees who slip through the hiring process can also create significant legal liability for their employers in the form of lawsuits for negligent hiring, negligent retention, or vicarious liability for employee misconduct. Employers are increasingly finding that their best defense is to conduct thorough background checks into job applicants and existing employees to weed out the potential troublemakers.
What Can Employers Find Out about Me?
Answer: A lot. Different employers will investigate different things. Some will be more thorough than others. Some will hire an outside investigation firm. Some will do it themselves. Following are the kinds of information about you that employers or their agents might investigate here in California.
Credit Reports. Negative credit information will appear on credit reports for 7 years. For bankruptcies, it is 10 years. Although bankruptcies are public record, employers are NOT permitted to discriminate against you based on them. Credit reports are available from Experian (888) 397-3742, Equifax (800) 685-1111, and TransUnion (877) 322-8228.
Criminal / Arrest Records. Employers can consider criminal convictions only if it’s relevant to the job. Employers in California can review job applicant arrest records ONLY if (i) the arrest(s) resulted in a conviction, or (ii) if the applicant is out of jail but pending trial. Otherwise, arrest records are off-limits. Felonies, misdemeanors and arrests are reportable for 7 years. [Cal. Civil Code §1785.13]. Employers in California can NOT inquire about marijuana convictions that are more than 2 years old. Juvenile criminal records are also off-limits to employers.
Worker Compensation Records. Employers may only use this information if an injury might interfere with the applicant’s ability to perform specific job functions. In California, employers can access these records ONLY AFTER making the job applicant an offer, and they can NOT then rescind the offer based on them [Cal. Labor Code 132a]. However, worker compensation records also show prior employers where applicants had filed prior worker compensation claims. If the applicant failed to disclose any of these prior employers during the application process, this can be grounds for termination. Employers can access worker compensation records by submitting a “Request for Public Records” with the California Workers’ Compensation Appeals Board (WCAB) and confirming that they need the information for legitimate reasons.
References. Employers can speak to references, including past employers, friends, neighbors or associates, about your character, general reputation, personal characteristics, or mode of living. [Cal. Civil Code § 1786(B)(iii)]. California code refers to this as an “investigative consumer report” and imposes special requirements on employers who conduct these. If a former employer makes a false derogatory statement about you, you may have a legal claim against them. Generally speaking, California law protects former employers from liability for defamation if they comment on a job applicant’s job performance or qualifications. However, if they act with “malice, this protection won’t apply. [Cal. Civil Code § 47(c)]. California law also prohibits employers from intentionally interfering with former employees’ attempts to find jobs by giving out false or misleading references. [Cal. Labor Code § 1050]. Most employers don’t want to run the risk of getting sued and are willing only to confirm a job applicants’ dates of employment and position with them.
Medical History. The federal Health Information Portability and Accountability Act (HIPAA) as well as the California Confidentiality of Medical Information Act (CCMIA) both impose strict requirements for preserving the confidentiality of your medical information. In addition, California’s disability discrimination laws [Cal. Government Code § 12940 et seq.] (as well as their federal counterparts, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964) prohibit employers from inquiring about your medical condition or mental or physical disabilities. Employers can ONLY inquire about your ability to perform specific job functions and that’s it. Insurance-related medical history information is available from MIB Group (866) 692-6901.
Education Records. Employers can obtain certifications of years of attendance from the educational institutions which applicants list on their resumes by directly contacting them. School records are otherwise confidential and employers can NOT access them without the student’s consent.
DMV Driving/Vehicle Registration Records. Employers can obtain your driving and vehicle registration records without your consent. They are available at the California DMV (800) 777-0133.
Insurance Claims Reports. Available from ISO (800) 888-4476.
Immigration Records. Available by filing Form I-9 with the Bureau of Citizenship and Immigration Services (formerly INS) (800) 375-5283.
Military Records. Employers can obtain your name, rank, salary, assignments and awards without your consent.
Other possible records.
– Drug Test Records
– Social Security Records
– Court Records
– Property Ownership
– State Licensing Records
– Sex Offender Lists
NOTE: the time limitations on adverse items contained in the above do not apply if you are applying for a job that pays $75,000 or more a year. [15 U.S.C. §§ 1681 et seq.]. Also note, the foregoing is very state-specific. We’ve focused on California only.
What Are My Rights?
In the Information Age, employers can get their hands on a LOT of personal information about you the employee or job applicant. But that doesn’t mean you don’t have rights. Federal and state laws exist to protect your privacy from overly-inquisitive employers.
Fair Credit Reporting Act (FCRA)
In 1970, the federal government enacted the Fair Credit Reporting Act (15 U.S.C. §§1681 et seq.) to protect the privacy of consumer information and ensure consumer report accuracy. The FCRA was amended by the Fair and Accurate Credit Transaction Act of 2003 (FACTA) to also address identity theft and medical information privacy.
Most people think of the FCRA as regulating the credit reports you use to apply for credit cards, home mortgages and car leases. But the FCRA does much more. For instance, it also regulates employer background checks on employees.
In particular, the FCRA requires employers to notify you in separate, formal, prior written document that they may conduct a background check on you. If the employer intends to use an outside investigation agency, then the employer must also get your prior written authorization.
If the employer decides to reject your job application or request for promotion or job reassignment, etc., based on a background check that has been conducted by an outside investigation agency, then the FCRA requires the employer do the following:
– BEFORE taking the action against you, the employer must give you a “pre-adverse action disclosure” consisting of a copy of any reports on you, and a copy of “A Summary of Your Rights under the Fair Credit Reporting Act”
– AFTER taking the action against you, the employer must give you an “adverse action notice” consisting of oral, written or electronic notice of the employer’s decision and the fact that it was based on what the background check revealed, contact information for the outside investigation agency used by the employer, a statement that the outside investigation agency was not responsible for the employer’s decision and can’t give specific reasons for it, notice of your right to dispute the accuracy or completeness of the reports on you, and notice of your right to receive additional copies of reports on you from the outside investigation agency within 60 days of your request.
The employer is not required to give you a “pre-adverse action disclosure” or “adverse action notice” if the employer did not use an outside investigation agency but instead conducted the investigation itself.
The Federal Trade Commission (FTC) is responsible for enforcing the FCRA. The FCRA applies in all 50 states.
California Information Privacy Act (CIPA)
California state law takes the minimum employee privacy protections contained in FCRA and builds on them to make them even tougher through the California Information Privacy Act (Cal. Civil Code §§ 1785 et seq.) (CIPA).
Like FCRA, CIPA imposes tougher requirements on employers who retain an outside investigation agency to conduct the background check, versus employers who do it themselves.
If the employer is doing the investigation itself, CIPA requires the employer to give you a checkbox to receive a copy of background reports about you. The checkbox can be contained either in the job application form or in the written notice of the background investigation required by FCRA. If you check the box, a copy of the reports about you must be sent to you within 3 business days after the employer receives them.
If the employer is using an outside investigation agency, however, CIPA requires the employer to first give you a “clear and conspicuous” notice in writing of the “nature and scope” of the background check [Cal. Civil Code § 1786.16(2)(B)(v)]. This enhanced notice isn’t necessary if the employer is doing the background check itself.
If the employer decides to use an outside investigation agency to interview references about you, the employer must also (i) state the purpose of the investigation, (ii) give you contact information for the investigation agency, (ii) give you a summary of your rights to see and copy any reports about you, and (iv) provide you a checkbox which you can check if you want to receive a copy. If you check the box, a copy of the reports about you must be sent to you within 3 business days after the employer receives them.
An important exception: if the employer is doing the background check due to suspicion that you’ve engaged in wrongdoing or misconduct, then CIPA relieves the employer of the requirement to give you notice of and obtain your consent to the background check. [CA Civil Code § 1786.16(2)].
What Do I Do Now?
First, there’s nothing stopping you from doing your own background check ON YOURSELF. If you’ve been getting turned down for jobs and don’t know why, this might be a good thing to do. In many cases, there is no charge once you’ve proven you are who you say you are. And don’t forget to request copies of your personnel and payroll records from previous employers. See my previous post explaining how to do this. If you spot any errors, make sure you get them corrected right away. Among other things, it could be a sign that your identity has been stolen.
When applying for a job, or if you’ve already been turned down for a job or promotion, make sure you’ve checked the checkbox on your job application, investigation notice, or adverse action notice in order to receive a copy of the background reports about you. Once you receive the reports, review them and correct any inaccuracies you find.
If you believe an employer has failed to comply with the FCRA and/or the CIPA, talk to a lawyer right away. You may have a claim for damages, including legal costs, attorney fees and punitive damages, against the employer.
For more information, go to Privacy Rights Clearinghouse