Background Check Regulations (and sample of forms)
Employers that conduct background checks must comply with the Federal Fair Credit Reporting Act, the California Consumer Credit Reporting Agencies Act, and the Investigative Consumer Reporting Agencies Act, as applicable.
California, in general, is more rigid than the federal law, employers should ensure their vendors also comply with California's requirements.
With regard to this Act:
Employer includes direct and joint employers, employers' agents, and staffing agencies.
Applicant: defined as individuals who were conditionally offered employment, which includes current employees applying for new positions and employees subject to review because change of ownership.
When an employer intends to deny employment because of an applicant's conviction history, the employer must conduct an “initial individualized assessment,” and a “reassessment” using the information voluntarily provided through the hiring process.
The initial individualized assessment, the employer must consider: (1) the nature and gravity of the conviction; (2) the time since conviction and/or completion of the sentence; and (3) the nature of the position.
The regulations also require the employer to evaluate the applicant's conduct that resulted in the conviction, the amount of time that has passed since the underlying conviction or the applicant's release from incarceration, and the specific duties of the job.
If after the assessment(s), the employer decides to withdrawal the conditional job offer (background checks are conducted post offer and before employment starts), the employer must send the applicant a preliminary notice with a right to respond, and an opportunity to challenge the accuracy of the conviction history report and submit evidence of rehabilitating or mitigating circumstances.
Applicants have five days to respond to the notice, unless the employer chooses to provide more time.
If after the preliminary notice, the employer still decides to withdraw the conditional offer of employment, it must provide a written notice of decision.
Here are sample forms California provides via the CRD website.
Source: Shaw Law Group, received on February 6, 2024 (through EL-Infonet)