Employers must get permission before performing background checks in California

Dive Brief:

Employers in California must follow the stricter Investigative Consumer Reporting Agencies Act (ICRAA) when running certain background checks and obtain written permission from employees and applicants before doing so, the California Supreme Court ruled Aug. 20. The state's high court affirmed a lower court ruling in Connor v. First Student, Inc. that said First Student improperly failed to notify or obtain consent from 54,000 bus drivers before it ran background checks, in accordance with ICRAA.
The court had to consider whether ICRAA was "unconstitutionally vague" when applied to employee background checks because it overlaps in part with the Consumer Credit Reporting Agencies Act (CCRAA), which does not require prior disclosure or consent from an employee. First Student had complied with CCRAA requirements. The court ruled that overlap between the two statutes does not render ICRAA vague, and that even when CCRAA applies, that fact does not exempt an employer from ICRAA background check requirements.
According to the filing, "the background check that First conducted here is an investigative consumer report under ICRAA because it reported on Connor's 'character, general reputation, personal characteristics, or mode of living.'"

Dive Insight:

Employers across industries are turning to background checks and more thorough screening in an attempt to one-up less-than-qualified applicants who lie to get through applicant screening platforms, but state and local law continues to complicate the process. Employers interested in sprucing up their screening process need to keep a few things in mind.

For starters, all employers should be aware of federal requirements regarding background checks. Nondiscrimination statutes dictate what information may be sought and the Fair Credit Reporting Act (FCRA) sets out its own disclosure requirements that employers must heed. The EEOC has tried to issue further guidance on the matter, especially regarding criminal record, but the agency has seen some pushback in the courts.

California's decision here is but another way states, in particular, are pushing back somewhat against background checks.

"States and cities are making it harder on employers to get a thorough background check," James R. Silvers, an associate at Ogletree Deakins, previously told HR Dive, "at the same time they're required to protect from negligent hiring."

But employers don't have to go it alone regarding background checks. Silvers recommended employers find a reputable agency, and assure they're in good standing with associations like the National Association of Professional Background Screeners, and/or certified FCRA compliant. Additionally, candidates should be evaluated on an individualized basis and questions, if an employer seeks to go the DIY route, should be limited to information relevant to job functions.