What rules govern California employers who run in-house checks?

As of January 1, 2018, most employers are not supposed to run any kind of background check until after they have extended a conditional offer of employment. However, once they do, the law is more relaxed about in-house background checks than it is about using background check companies. This means you have fewer rights when it comes to being notified, giving permission, and challenging the results of in-house background checks.However, if an employer is running his/her own in-house background check on you, they still must follow certain rules. Here is what the employer is and isn’t legally required to do:

    The employer may request your permission, but it’s not required. Look carefully at the job application form—the employer might ask to run an in-house background check right on the application form itself.
    The employer must give you a copy of public records used in the report—unless you check the box to waive (give up) this right. Be careful—the job application or other forms MAY have a box that you can check to give up your right to see the public records, and it’s recommended that you do not check that box![1920]

KNOW YOUR RIGHTS: You have a legal right to get a copy of the public records used by the employer—don’t give it up! It’s recommended that you always indicate that you DO want to see the public records report, and make sure you DON’T check a box waiving (giving up) your right on the application. What to look out for:

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    The box to waive your rights will probably say something like this: “I further understand that the Company may obtain Public Records about me as part of an internal background investigation and that I may waive my right to receive a copy of such Public Records by checking the box to the right.”[1921] It’s recommended that you DON’T CHECK THIS BOX!This can be confusing because it is the opposite of what happens when the employer hires a private company to do the background check (in which case it is recommended that you check the box to request a copy of the background check report).[1922]
    If you don’t waive your right to view the public records gathered about you, the employer must give you a copy of the public records within 7 days after it receives them.[1923]
    EXCEPTION: In California, if your existing or future employer wants to run an in-house background check because it suspects you of misconduct or wrongdoing, the employer is not required to reveal its findings until after the investigation is over. However, upon completion of the investigation, the employer must give you a copy of the public records unless you waived (gave up) your rights (so again, its recommended that you don’t give up your right to a copy of those public records!).[1924]
    If the employer takes any adverse (negative) action against you—such as deciding not to hire you—because of information in the public records, the employer must give you a copy of the public records even if you checked the box that waived your right to see the records.[1925]
    The employer is not required to give you information it gets from non-public sources, such as checking your references with past employers, verifying your education records, or talking to people who know you.[1926]

HELPFUL HINTImportant things to know about listing references and previous jobs

When you apply for a job, the new employer will often contact your former employers and other people you list as references, in order to find out if you were a good employee and to decide if they should hire you. Keep in mind that a former employer CAN say negative things about you as part of a job reference even suspected criminal activity, regardless of whether you were convicted of anything—so long as they reasonably believe the information is true and they are not simply acting out of meanness towards you.Also, the new employer is NOT required to tell you what these people said about you, and they can say positive or negative things. It’s recommended that you check in with your references BEFORE listing them, so that you know what they will say about you. (You can also ask someone you trust—a case manager, social worker, legal aid attorney, or friend—to call for you.) Finally, the new employer will also check the dates when you worked at your previous jobs and how much you earned—so make sure you know the EXACT dates and amount you earned, or it could seem like you are being dishonest in a new job application. For more information about listing references and previous jobs on a job application, see PG. 567.

  1. 1920

    Cal. Civ. Code § 1786.53.

  2. 1921

    See, e.g., TheBestIRS.com, Application for Employment, at 4, http://www.thebestirs.com/repository/application_2014.pdf; Living Spaces Furniture, Form 10000: Application for Employment, at 4, https://www.livingspaces.com/_Content/Ads/job_app.pdf.

  3. 1922

    Cal. Civ. Code § 1786.16(b)(1).

  4. 1923

    Cal. Civ. Code § 1786.53(b)(1).

  5. 1924

    Cal. Civ. Code § 1786.53(b)(3).

  6. 1925

    Cal. Civ. Code § 1786.53(b)(4).

  7. 1926

    Cal. Civ. Code § 1786.53(b).