If the employer uses a private company to run a background check on you

Are employers legally allowed to run a background check on me?

Yes, although they are restricted in doing so in the hiring process. Employers are allowed to use background checks when deciding whether to finalize an offer of employment, promote, reassign, or keep you on as an employee. Private background check companies are allowed to provide background checks (also called consumer reports) to anyone the agency reasonably believes will use the information “for employment purposes.”^[1874]

1. ¹⁸⁷⁴

   See 15 U.S.C. § 1681b; Cal. Civ. Code § 1786.2(f). ↑

Can an employer consider my credit history?

Generally, no. Employers CANNOT look at your credit report unless you are applying for certain high level or sensitive job positions, such as a manager or supervisor within a company, a law enforcement officer, or a position with access to large amounts of cash and/or sensitive financial information.^[1875] If you have further questions about your credit history, contact a local legal service organization or call 2-1-1.

Know Your Rights: Convictions More Than 7 Years Old

There is a weird gap in the law that you should know about. While employers CAN ask about and consider convictions older than 7 years old (but only after they have extended a conditional offer of employment), private background check companies CANNOT report information about convictions more than 7 years old on your background check report. This CANNOT come up in a background check.

KNOW YOUR RIGHTSYour Rights If An Employer Runs A Background Check

Most employers with five or more employees MUST wait to run a background check until they have extended a conditional offer of employment.Employers MUST NOTIFY you and get your PERMISSION BEFORE running a background check on you through a private background check company.Employers MUST offer you a copy of the background check report. ALWAYS request a copy of the background check report.Employers CAN see: convictions and pending (unresolved) arrests, charges, or cases; other personal information about you. But they CANNOT see convictions and other negative information that is more than 7 years old.In general, employers CANNOT see: arrests that did not lead to conviction; convictions that have been dismissed/expunged/sealed; participation in court diversion programs; and certain minor marijuana convictions; your RAP sheet; your credit report.If an employer decides not to hire you because of information in your background check report, the employer MUST NOTIFY you beforehand; give you a COPY of the background check report; and give you a chance to CORRECT any errors in your background check report and/or OFFER proof of rehabilitation or other relevant evidence.

1. ¹⁸⁷⁵

   Cal. Lab. Code § 1024.5, et seq. ↑

Are employers legally required to conduct criminal background checks?

Generally, no. Most of the time, the employer is not legally required to run a background check, though many choose to.^[1876] The only exception to this rule is if the job involves unsupervised access to sensitive populations or the handling of sensitive information (like law enforcement officers,^[1877] airport security screeners,^[1878] security guard positions,^[1879] bank employees,^[1880] port workers,^[1881] childcare workers in federal facilities or agencies,^[1882] certain insurance personnel,^[1883] any personnel involved in administration of an employee benefits plan,^[1884] defense contractors,^[1885] and prisoner transportation personnel).^[1886] For these specialized jobs, a background check is mandatory.

1. ¹⁸⁷⁶

   42 U.S.C. § 2000e-2; see also, NELP, Top Ten Best Practices for Fair Chance Policies, at 1-2, http://www.nelp.org/page/-/SCLP/2014/Guides/NELP_Best_Practices_and_Model_Policies.pdf?nocdn=1. ↑

2. ¹⁸⁷⁷

   5 U.S.C. § 7371(b). ↑

3. ¹⁸⁷⁸

   49 U.S.C § 44935(e)(2)(B). ↑

4. ¹⁸⁷⁹

   Cal. Bus. & Prof. Code § 7583.9; see also Calif. Dep’t of Consumer Affairs, Security Guard Fact Sheet (July 2012). ↑

5. ¹⁸⁸⁰

   12 U.S.C. § 1829. ↑

6. ¹⁸⁸¹

   46 U.S.C. § 70105(c). ↑

7. ¹⁸⁸²

   42 U.S.C. § 13041(a). ↑

8. ¹⁸⁸³

   18 U.S.C. § 1033(e). ↑

9. ¹⁸⁸⁴

   29 U.S.C. § 1111(a). ↑

10. ¹⁸⁸⁵

    10 U.S.C. § 2408(a). ↑

11. ¹⁸⁸⁶

    42 U.S.C. § 13726b(b)(1). ↑

Since employers are allowed to run background checks on me, do I have any legal rights in the process?

Yes—you have a number of important legal rights THROUGHOUT the hiring process in how the employer can run and use a background check. See PG. 572 for information on when in the application process an employer can run a background check. The following rules protect your rights when you are applying for a job and the employer runs a background check on you through a private background check company. (Note: There are different rules if the employer runs a background check on a current employee because it suspects the person of misconduct or wrongdoing.)^[1887]

Before an employer runs a background check on you using a private background check company, the employer must do ALL of the following: give you notice, get your written permission (consent) to run the check, inform you of your rights, and offer you a copy of the report, once it is done.^[1888] Here are the 4 steps below in more detail:

Give you ADVANCED, WRITTEN NOTICE

An employer must provide you with written notice if it intends to hire a background check company and use information in your background check to make decisions related to your employment. This notice must be in a separate document from other information from the employer—it can’t just be mentioned on the job application or buried among other papers—SO that it is clear that the employer is running a background check done on you.^[1889]

The NOTICE must include the following INFORMATION:^[1890]

Explain the purpose of the background check.

Explain that the background check may include information on your “character, general reputation, personal characteristics, and mode of living”—meaning certain personal information about you and your past.^[1891]

Give the name, address, phone number, and website of the private background check company that will conduct the background check. There are many background check companies out there, and you are entitled to know exactly which one is providing a report on you.

Explain your right to review the background check company’s files along with all the information the agency used when conducting your background check and preparing your background check report for the employer.^[1892] If the report will include information from interviews with your neighbors, friends, or associates, you must be given special notice.^[1893]

Get WRITTEN PERMISSION from YOU before they run the check:

After the employer gives you notice, the employer must ask and get your permission in writing—before conducting a background check.^[1894] Usually, there will be a box to check on the job application, asking you for your permission for the employer to do a background check.

IMPORTANT: If AN EMPLOYER WANTS TO RUN AN ADDITIONAL BACKGROUND CHECK LATER ON: Employers must give you NOTICE and get your PERMISSION EVERY TIME they run a background check. If the employer wants to do another background check later, or wants to get continuous, updated background checks on you during your employment, they must give you a NEW NOTICE AND get NEW written PERMISSION from you each and every time they do a background check (except in cases of suspected misconduct).^[1895]

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Inform you of YOUR RIGHT TO SEE THE INFORMATION in your background check:

The employer must inform you of your right to see the information used by the Background check company when conducting your background check.^[1896]

Offer you a COPY of your background check report:

The employer must give you a chance to request a copy of the background check report they got. There should be a box you can check to request copy of your report—usually it will be on the same form you sign to give permission for the background check.^[1897] Always check YES to get a copy of the report so you can see what the employer sees! If you check the box to request a copy of your background check report, the employer must send you a copy of the report within 3 business days from the time when the employer receives it.^[1898]

IMPORTANT: ALWAYS request a copy of the background check report

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You have a legal right to receive a copy of the background check report used by the employer, and it is recommended that you always request a copy of the report. Always check the box to request a copy of the background check report.WHAT TO LOOK FOR:

The box to request a copy of the background check report will probably say something like this: “Check this box if you would like to receive a free copy of any consumer report or investigative consumer report obtained on you,” or “I am a California resident and I would like a free copy of my background check report.”^[1899]Make sure you CHECK THIS BOX to request a copy of your background check report.

1. ¹⁸⁸⁷

   Cal. Civ. Code §§ 1786.16, 1786.16(c). ↑

2. ¹⁸⁸⁸

   Cal. Civ. Code § 1786.16(a)(2)(A). California law is stricter than federal law about what an employer must do when notifying a job applicant about the requested consumer report. See generally California Investigative Consumer Background check companies Act (ICRAA) at Cal. Civ. Code § 1786 et seq. ↑

3. ¹⁸⁸⁹

   15 U.S.C. § 1681b(b)(2)(A)(i); Cal. Civ. Code § 1786.16(a)(2)(B). ↑

4. ¹⁸⁹⁰

   Cal. Civ. Code § 1786.16(a)(2)(b). The Background check company’s website must explain its policy about transferring personal information transferred to third parties outside the United States, and must give you a way to contact an agency representative with further questions. If the agency doesn’t have a website, you may request that a copy of the privacy policy be mailed to you. ↑

5. ¹⁸⁹¹

   There are strict limits on what information can be included in your background check report. For example, the Background check company generally CANNOT include information about arrests or convictions that are more than 7 years old, bankruptcies that took place more than 10 years ago, or debts that are more than 7 years old. Cal. Civ. Code § 1786.18. ↑

6. ¹⁸⁹²

   Cal. Civ. Code §§ 1786.16(a)(2)(B)(v), 1786.22, 1786.10. ↑

7. ¹⁸⁹³

   If interviews are involved, the report is defined as an “investigative consumer report” under the FCRA. ↑

8. ¹⁸⁹⁴

   15 U.S.C. § 1681b(b)(2)(A); Cal. Civ. Code § 1786.16(a)(2)(C). ↑

9. ¹⁸⁹⁵

   Cal. Civ. Code § 1786.16(a)(2) requires employers to provide notice and get permission “at any time” they want to run a background check. ↑

10. ¹⁸⁹⁶

    Cal. Civ. Code § 1786.16(a)(2)(B)(v); see also Cal. Civ. Code § 1786.22. ↑

11. ¹⁸⁹⁷

    Cal. Civ. Code § 1786.16(b)(1). ↑

12. ¹⁸⁹⁸

    Cal. Civ. Code § 1786.16(b)(1). You may receive a copy of the report from the employer or from the screening company. The report’s cover page must (1) include a notice in at least 12-point boldface type saying that the report does not guarantee the accuracy or truthfulness of the information, but was simply copied from public records; (2) include a warning that negative information could be the result of identity theft; and (3) give notice in English and Spanish of your rights. Business days” only include weekdays (Mon-Fri). Cal. Civ. Code § 1786.29. ↑

13. ¹⁸⁹⁹

    See Net Check Investigations (Cal. P.I. License 21529), Americheck—Authorization to Release Information, http://americhek.com/resources/pdf/Authorization_Release_2011-12.pdf; Mission Network, Disclosure Regarding Background Investigation, https://www.missionnetwork.com/sites/missionnetwork.com/files/nodes/1540/Background%20Check%20Authorization%20(New%202014).pdf; William Jessup Univ., Authorization for Background Checks (v1112), http://www.jessup.edu/wp-content/uploads/2013/09/investigative_report_authorization.pdf. ↑

Can an employer decide not to hire me based on my record?

Yes, BUT ONLY if they follow the law. The law sets certain rules that the employer must follow in the hiring process and in deciding whether to hire someone with a record. The employer must follow additional legal rules both before AND after taking any adverse action against you.^[1900]

1. ¹⁹⁰⁰

   15 U.S.C. § 1681b(b)(3)(A); Cal. Civ. Code § 1786.40(a). ↑

What rules must an employer follow if they decide not to hire me based on my record?

Under, federal law (FCRA) the employer must notify you both before AND after taking any adverse (negative) action against you based on the results of your background check.^[1901]

BEFORE ADVERSE ACTION:

Before an employer takes any adverse action against you based on the results of your background check, the employer must give you a “Pre-Adverse Action” letter to notify you that it is planning to take the adverse action.^[1902]

Under federal law, the Pre-Adverse Action letter must:

NOTIFY you that the employer plans to take adverse action against you based on information from your background check report;

Include a COPY of your background check report that the employer used to make its decision,^[1903] and

Include the DOCUMENT, “A Summary of Your Rights Under FCRA”^[1904] (see Appendix I, PG. 632)

After you receive this letter, you must be given a reasonable opportunity (about 5 days)^[1905] to review your report, respond to it, and correct any errors.

IMPORTANT: If you receive a “Pre-Adverse Action” letter, it is recommended that you:

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Review your background check report immediately to make sure it does not contain any incomplete, inaccurate or outdated information—such as convictions that are more than 7 years old; convictions that were dismissed/expunged/sealed; and/or arrests that did not lead to a conviction (as long as the charges are not still pending); Tell the employer immediately if there is any incomplete, inaccurate, or outdated information in the report;Offer proof of errors in your background check report, such as court records showing the final disposition (outcome) of the case;Offer proof of your rehabilitation efforts, including certifications or documents that show completion of programs, school transcripts, letters of support from past employer or other community members (not family or friends).

If the employer does not give you enough time to review the report and correct any errors—for example, if the employer gives you the “Pre-Adverse Action” letter and then rejects your job application on the same day—you may have a legal claim against the employer for violating your right to receive notice before the adverse action.^[1906]Although the purpose of the Pre-Adverse Action law is to allow you to correct errors in your background check report, the law is NOT clear about whether the employer is required to reconsider your application if you correct the error and provide proof. If this happens to you, you should talk to an attorney about whether the employer may have violated your rights.^[1907]

AFTER ADVERSE ACTION

After an employer takes any adverse action against you, such as rejecting your job application or firing you, the employer must give you an “Adverse Action Notice” to notify you that an adverse action was taken against you based on information from your background check. The employer can give you this notice orally, in writing, or electronically, but it must be within 3 business days of the employer’s final decision.

Under federal law, the Adverse Action Notice must include:

The name, address, and phone number of the background check company that supplied the report to the employer;

A statement that the background check company that supplied the report is not responsible for the adverse action and cannot explain the specific reasons for the action; and

A statement of your rights to:

Dispute (challenge) the accuracy or completeness of any information the background check company provided; and

Get an additional free report from the company within 60 days, if you ask for one.^[1908]

The Adverse Action Notice is important so that you know why the employer made the adverse decision against you and what information the employer considered. This way you can challenge or correct any information that is incorrect, incomplete, or illegal. And if the employer or background check company has NOT followed any of the laws described here—or if the employer does NOT give you an Adverse Action Notice—you may have a legal claim against them.

IMPORTANT INFORMATION ABOUT ADVERSE ACTION NOTICES: If an employer takes an adverse action against you (such as not hiring you) based on information in your background check report, they must give you BOTH a Pre-Adverse Action AND Adverse Action Notice.

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If the employer does not give you these documents, you may have a legal claim against them for violating your rights under background check laws. However, you will need to show that they employer’s decision was actually based on information in your background check report (such as your criminal record) and NOT for other reasons. See the text box on PG. 577 for how to do this.

For more information on what you can do if an employer does NOT give you an Adverse Action Notice or does NOT follow any of the other laws described here, see PG. 576.

For more information on how to challenge or correct information in your background check report, see information below, or see the UNDERSTANDING & CLEANING UP YOUR RECORD CHAPTER, PG. 931.

HELPFUL HINTIf I did not receive a Pre-Adverse Action or Adverse Action Notice, how can I show that the employer rejected me based on my background check and NOT other reasons?

Here are 2 strategies that have been used for showing that the employer may have rejected you based on your background check, even if they did NOT give you a Pre-Adverse Action or Adverse Action Notice:

1. ¹⁹⁰¹

   15 U.S.C. § 1681b(b)(3)(A). ↑

2. ¹⁹⁰²

   15 U.S.C. § 1681b(b)(3)(A); see also Russ Dempsey, Adverse Action in Employment, http://www.backgroundbureau.com/web/Articles/FCRA.shtml. ↑

3. ¹⁹⁰³

   Note: This means that the employer must give you a copy of your background check report, even if you did not check the box to request a copy of the report when giving permission to run the background check. ↑

4. ¹⁹⁰⁴

   15 U.S.C. § 1681b(b)(3)(A). A copy of “A Summary of Your Rights Under FCRA” can be found in Appendix I, PG. 684, or online at www.ftc.gov/credit. ↑

5. ¹⁹⁰⁵

   Although the law does not provide exactly how much time an employer must wait after sending a “Pre-Adverse Action” letter to take the adverse action, guidance from Congress suggests that 5 business days is a reasonable amount of time. See H.R. Rep. No. 103-486, at 30 (1994). ↑

6. ¹⁹⁰⁶

   See, e.g., Beverly v. Wal-Mart Stores, Inc., No. CIV. A. 3:07CV469, 2008 WL 149032, at *3 (2008); Williams v. Telespectrum, Inc., No. 3:05CV853, 2006 WL 7067107, at *4 (2006) (unreported); but see Johnson v. ADP Screening & Selection Svcs., Inc., 768 F. Supp. 2d 979, 983-84 (2011) (FRCA does not impose waiting period on employer nor require employer to hold position open for applicant during period between Pre-Adverse Action letter and adverse action). ↑

7. ¹⁹⁰⁷

   Compare, e.g., Beverly v. Wal-Mart Stores, Inc., No. CIV.A. 3:07CV469, 2008 WL 149032, at *3 (2008) (“The statutory purpose is to enable employee or applicant to correct any of inaccurate information in background report before any adverse decision or action is taken.”); with Johnson v. ADP Screening & Selection Servs., Inc., 768 F. Supp. 2d 979, 984 (2011) (“Nothing in the FCRA requires an employer to consider any correction that a Background check company might make.”) ↑

8. ¹⁹⁰⁸

   15 U.S.C. § 1681m(b)(1); Cal. Civ. Code § 1786.40. ↑

What can I do if there is inaccurate, incomplete, or illegal information in my background check report?

You have the right to dispute (challenge) any inaccurate, incomplete, or illegally included information in your background check report.

If there is inaccurate, incomplete, or illegal information in your background check report, you have the right to dispute (challenge) this information with the background check company that prepared the report. The background check company must investigate the error, delete or correct any improper information, and send a notice and a statement of correction to ANY employer who received a copy of your background check in the past 2 years (or anyone else who received a copy of your background check in the past year) if you ask.^[1909]

For more information on how to dispute inaccurate, incomplete, or illegally included information in your background check report, see information below, or see the UNDERSTANDING & CLEANING UP YOUR RECORD CHAPTER, PG. 931.

1. ¹⁹⁰⁹

   15 U.S.C. § 1681i; Cal. Civ. Code § 1786.24. ↑

If I am hired, can my employer run background checks on me in the future without my permission?

No. Under California state law, an employer must follow the legal procedure of giving you notice, getting permission, etc., every time it wants to run a background check on you.^[1910] In addition, an employer CANNOT ask you to waive (give up) your right to receive notice, give permission, etc., before running a background check.^[1911]

EXCEPTION: If an employer suspects you of wrongdoing or misconduct, it can run a background check without giving you notice or asking for your permission. This exception applies if the employer is conducting a background check because they suspect you of misconduct on the job, including violating any written polices of the employer, or violating any federal, state, or local laws or regulations.^[1912]

1. ¹⁹¹⁰

   Cal. Civ. Code § 1786.24(b). ↑

2. ¹⁹¹¹

   Cal. Civ. Code § 1786.57. ↑

3. ¹⁹¹²

   Both California and federal law have exceptions to the notice and permission requirements if an employer does a background check because they suspect you of “wrongdoing or misconduct,” and uses a private Background check company to conduct the background check. Cal. Civ. Code § 1786.16(a)(2), (c); 15 U.S.C. § 1681a(y)(1). In this case, the employer is NOT required to notify you or get your permission before conducting the background check. If the employer later decides to take adverse action based on the results of the background check, they are only required to give you a summary of the background check report (not the sources of information nor full report itself), and only after the adverse action is taken (not before the adverse action). 15 U.S.C. § 1681a(y)(2). ↑

What can I do if the employer has already received information from a background check report that it shouldn’t have received by law?

Unfortunately, employers sometimes get information that should NOT have been included in your background check report. Here are some suggested steps if this happens to you:

STEP 1: The first recommended step is that you get a copy of the background check report, so that you know what information the employer is seeing. For this reason, it’s important to always check the box to request a copy of the report when you give permission to an employer to run a background check on you.

If you didn’t check the box before, you can still get a copy of the report in 2 ways:

If the employer decides take an adverse (negative) action against you—such as rejecting your job application—they must give you a copy of the background check report before taking the action.^[1913]

The background check company is required to give you a copy of the same report sent to the employer, if you ask for it within (at least) 2 years.^[1914]

STEP 2: If there are errors or inaccurate information on the background check report, it’s recommended that you point this out to the employer right away. If possible, you may also want to show the employer any proof of the correct information—for example, court papers showing that your conviction has been expunged, or that charges against you were dismissed.

You also have the right to make the background check company correct the information, and send the employer a notice and statement of the correction. For more information on correcting information with the background check company and notifying the employer of the correction, see PG. 582 below.

STEP 3: If the employer asks you about things that should NOT have been in your background check report—such as convictions that are more than 7 years old—it’s recommended you answer the question directly and honestly, but briefly:

You can take responsibility for your actions. State the facts, but express regret for what happened. Don’t get defensive. Be honest, but don’t go into details.

You don’t need to go into details. Keep your answer short. Be honest, but only talk about necessary information based on the questions you are asked.

You can tell the employer how you have changed. Emphasize that the incident happened long ago and that you are a different person now. Explain what you learned while you were in prison/jail, and what you are doing differently now. Paint a picture of the person you are now.

You can emphasize your qualifications. Describe the things that will make you a good employee—such as previous work experience, job training programs, or classes that you’ve done—and any letters of recommendation that you have. Show the employer why you are qualified for the position and will be a benefit to the company.

You can describe your hopes and dreams. Show the employer than you are in control of your life and have short-term and long-term goals. Highlight any services that you’re getting to help you move on and achieve your goals. Emphasize that you would be very appreciative of the opportunity to work for them, and you will be the hardest worker they will ever have.^[1915]

STEP 4: If the employer asks you (or makes comments) about incorrect or improper information in your background check report, you may want to write down anything the employer says and anything you say to the employer, so that you have a record to protect your rights later.

1. ¹⁹¹³

   15 U.S.C. § 1681b(b)(3)(A)(i). ↑

2. ¹⁹¹⁴

   Cal. Civ. Code § 1786.11. ↑

3. ¹⁹¹⁵

   Electronic communication from Mary Weaver, Executive Director, Friends Outside in Los Angeles County (Jan. 29, 2015); electronic communication from Mario Rodriguez, South Bay Workforce Investment Board (Jan. 29, 2015). ↑