California Background Check General Requirements
Performing a background check can be an effective way to paint a comprehensive picture of one’s history through public records. In the state of California, having access to public records is considered a statutory right under California’s Public Records Act (CPRA). Under CPRA, any person, corporation, or other entity may obtain public records without explaining intent. There is an exception to this rule: if you’re searching for the address of an individual who has been arrested or has been the victim of a crime, you’ll need to explain the purpose of your request in order to access this information.
While public records may be readily accessible, California background checks are tightly regulated by both federal and state laws. Background check requesters are subject to a number of laws that determine what information appears in a background check report, particularly when it comes to employment and criminal, arrest, and jail records.
Just like other states, there are legal restrictions on how employers, landlords, and others can use the information that may be found in a California background check. Any within one of the scenarios listed above is typically required to obtain background checks through the state of California or through FCRA (see below)-approved third-party services.
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FCRA, EEOC, and Ban-the-Box
Since 1970, the Fair Credit Reporting Act 15 U.S.C. § 1681 et seq. (FCRA) has required that, in certain contexts such as employment, FCRA-approved third-party services must be used to conduct background checks (please note: the website in which this article appears is specifically NOT FCRA-accredited or authorized as a credit reporting agency permissible for use to verify employment background checks, tenant consideration and other contexts). FCRA establishes additional restrictions and regulations, including:
- Employers must obtain written consent from a prospective employee prior to requesting a background check on the individual.
- Information found in a background check must be kept confidential.
- Only records of paid tax liens, civil suits, civil judgments, and arrest (as opposed to conviction) records in the 7 years prior to the background check can be included in the report (however, non-FCRA accredited websites, such as this one, may theoretically contain information beyond that time span).
In addition to FCRA, the U.S. Equal Employment Opportunity Commission (EEOC) (based on Title VII of the Civil Rights Act of 1964) provides guidelines and fair hiring laws for employers in order to prevent discrimination based on race, creed, criminal record, or other at any point in the employment process.
Along with the EEOC, the California Fair Employment & Housing Council has also issued guidance for employers on how to avoid discriminating against applicants with criminal records when making hiring decisions. For example, the employer may only consider offenses related to the duties of the position as a reason to eliminate a candidate from consideration. If the candidate is not hired because of information in their background check, the employer must notify them and explain this decision.
The State of California has established state-wide Ban-the-Box policies for all public sector companies, effective since January 1, 2018. The Ban-the-Box policy mandates that employers of both public and private sector companies with more than 5 employees may only inquire into a prospective employee’s criminal history after the candidate has proven that he or she is capable of fulfilling the duties of the position and is given a conditional offer of employment. Similar Ban-the-Box policies have been established in individual jurisdictions (counties and cities) and may also apply to both public and private companies.
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Other Background Check General Laws
FCRA only allows for a review of the past 7 years in the reports of the background check services that abide by the law, though non-FCRA bound websites may have information beyond that time span.
California Background Check Laws
CA Civil Code (Investigative Consumer Reporting Agencies Act) 1786.18 (a) (7) and (b) Obligations of Investigative Consumer Reporting Agencies
Any arrests, misdemeanor complaints, indictments, or convictions of crimes older than 7 years may not be included in California background checks. The following is also not typically reported in a background check, regardless of the timing of the occurrence:
- Any arrest that did not lead to a conviction
- Any full pardon that has been granted to the alleged offender
However, any pending criminal charges may be included in California background check reports.
CA Labor Code 432.7
California employers of both public and private companies are not permitted to ask a prospective job candidate about any of the following under CA Labor Code 432.7:
- Criminal charges that did not result in a conviction
- Pre- or post-trial diversion programs
- Dismissed, expunged or sealed convictions
- Juvenile records
However, employers may inquire about any pending criminal charges that may be revealed in a background check. The code also stipulates that employers may not make employment decisions about a candidate based on the above information.
CA Civil Code (Consumer Credit Reporting Agencies Act) 1785.20.5.
Unlike criminal records, it is legal for an employer to consider a job applicant’s credit report when making a hiring decision. As such, this code mandates the following:
- The employer must inform the applicant that their credit report may affect their hiring decision.
- The employer must reveal the maker of the credit report.
- The employer must provide the applicant with a free copy of the credit report upon request. Should the applicant opt to receive the report, both copies must be sent to the applicant and the employer at the same time.
California law stipulates that consumer reporting agencies must save the reports they generate for at least two (2) years.
Cal. Labor Code 222.5
Should the employer require an applicant to take an employment-related drug test, the employer cannot require them to pay the costs associated with the test.
CA Labor Code §1024.5, Part 2, Division 2 of the Labor Code
Under California Law, employers may only use credit reports in hiring decisions under one of the following circumstances:
- When the position the employer is hiring for is a managerial position;
- When the position the candidate is being considered for is a law enforcement position;
- When the position is in the State Department of Justice;
- When the position is required by law to include a credit report;
- When the position is one that requires the candidate to regularly handle other individuals’ sensitive information;
- When the position requires the applicant to assume fiduciary responsibilities for the employer or business;
- When the position allows the applicant access to trade secrets or other valuable business information;
- When the position requires the applicant to handle $10,000 or more in cash.
A Health and Safety Code §11361.5
Under California law, misdemeanor marijuana convictions older than 2 years may not be legally reported in a background check, as they are considered outdated and inaccurate.
Should the employer choose to deny a candidate the position based on the criminal records information in the applicant’s background check, the employer must be able to prove that the information has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” However, California law does not require employers to provide this assessment to the candidate (note: this may differ under city or jurisdiction-specific law, such as the Los Angeles Ban-the-Box ordinance).
The Los Angeles Fair Chance Initiative for Hiring Ordinance
Effective since January 22, 2017, the Los Angeles Fair Chance Initiative for Hiring Ordinance imposes additional regulations beyond those established by state laws and federal laws. This ordinance applies to employers operating in the City of Los Angeles who employ 10 or more individuals (defined as a person who performs at least an average of two (2) hours of work a week for the employer and who is subject to California’s minimum wage law).
The ordinance imposes the following steps when considering a person’s criminal history in matters of employment:
- Perform a written assessment that “effectively links specific aspects of the Applicant’s Criminal History with risks inherent in the duties of the Employment position sought.” (City of Los Angeles Ban-the-Box Ordinance)
- Implement a “Fair Chance Process”: the employer must provide the applicant with the opportunity to address the background check information the employer deemed adverse to the responsibilities outlined by the position. The candidate may then provide additional information or documentation as evidence that the criminal records information is inaccurate, outdated, or other, to appeal the decision.
- The employer must then wait five (5) days before filling the position or taking adverse action after reviewing the additional information and documentation provided by the applicant. If the employer maintains the decision to refuse the individual employment in the position, they must provide the applicant with a copy of the written assessment and a notice of adverse action.
Additionally, the ordinance stipulates that, when advertising to fill the available positions in the corporation, the employer must state that all qualified candidates will be considered — including those with a criminal history.
San Francisco’s Fair Chance Ordinance
In addition to statewide and federal fair hiring laws, San Francisco’s Fair Chance Ordinance provides additional regulations to protect individuals seeking employment at businesses or corporations with five (5) or more employees. Employers must:
- Provide applicants with a copy of the Office of Labor Standards Enforcement's (OLSE) Fair Chance Act Notice before (1) inquiring about criminal history or (2) performing a criminal background check.
- Post the Notice "in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer's control frequently visited by their employees or applicants," and "send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding, that is applicable to employees in San Francisco." The Notice must be available in English, Spanish, Chinese, and any language spoken by at least 5 percent of the employees at the business.
In accordance with the ordinance, employers may not consider the following criminal records in the hiring process:
- Convictions more than 7 years old
- Convictions that were the result of behavior or actions that have been decriminalized since the date of the conviction.
What Is Included in a California Background Check? Obtaining a California Background Check
California background checks may include full names, aliases, addresses, arrest records, criminal records, and the last four digits of an individual’s Social Security Number.
In California, background checks, including criminal record history, may be obtained through fingerprint submissions provided by various law enforcement databases or FCRA-approved third-party services.
Limited information may be available through non-FCRA-approved services without consent from the individual or proof of intent.