Have you ever been so excited about the prospect of a new job (especially one that you really want) that you would do anything the employer asked? While most potential hires encounter prospective employers with good intentions, there are times when what is asked can be a red flag in the gray area known as the background check.
Our team strives to ensure that every candidate we work with benefits from our unrivaled industry insights, but also our utmost understanding of permissible hiring practices as well. The 10 tips below offer insights into what is allowed and what you should ask your recruiter about; this article is for informational purposes only and is not intended to serve as legal advice.
THE BACKGROUND CHECK BEHIND THE SCENES
10 Tips For Every Prospective Employee
#1: Know The Entities Involved. On a federal level, your legal rights in a background check are protected by the Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC). The FTC enforces a federal law that regulates background reports for employment, while the EEOC enforces federal laws against employment discrimination. Read more about these regulatory agencies and how you can seek their assistance at: https://www.eeoc.gov/eeoc/publications/background_checks_employees.cfm.
#2: Understand That Not All Background Checks Are Created Equal. There are many types of background checks available, and an employer may perform them in-house or hire a third-party agency to complete the investigation. Background checks may verify one, several or all of the following: criminal records (state, county, and city), credit history, employment history, work authorization, education history (high school, university, etc.), social media profiles, driving record and medical records (restrictions apply). Furthermore, background check laws may vary greatly by state and can change from year to year (and often do).
#3: Get To Know The Difference Between The FCRA and ICR (see #4). The federal Fair Credit Reporting Act (FCRA) sets the national standard for employment background checks when (and only when) the report is prepared by a third-party screening company. The FCRA requires the employer to: provide notice on a separate document that a report may be required, obtain your permission (including specific permission if medical information is requested), give a specific notice if your friends, neighbors and associates will be interviewed and notify you if information in the report is used to make an adverse decision about you.
#4: Make Yourself Aware Of The Additional California Provisions For Background Checks. Applicants and employees in California have all the rights of the FCRA and more. In our state, an employment background check is called an “investigative consumer report” (ICR) and covers your “character, general reputation, personal characteristics, or mode of living” obtained through “any means.” As such, the notice provided to a prospective or current employee is more extensive than that given under the FCRA. California provisions of background checks apply to employers themselves as well as third-party screening companies.
#5: Always Check The Box To Receive A Copy Of Your Report. In California, the notice you receive before a background check can be completed includes a box that you can (and should!) check if you want to receive a copy of the report. It may come from the employer or the screening company and should be delivered within 3 days of the employer receiving it. You can get a copy of your report for up to two years after it is conducted. (Only public records obtained will be provided, disclosing information from reference checks is not required.)
#6: Know When Your Credit Report Can Be Pulled In California. There are 8 criteria and position types in our state in which your credit can legally be pulled: a position in the state department of justice, a managerial position, a position as a sworn peace officer or other law enforcement job, a position for which the information is required by law, a position that involves access to specified personal information, a position in which the person is a named signatory on the employer’s bank or credit card account, a position that involves access to confidential or proprietary information and a position that involves regular access to $10,000 or more of cash.
The employer must provide a notice that a credit report will be ordered and explain what exemption from above allows this access. The prospective/current employee can check a box to receive a copy of the report. In reality, it is best to order your own free credit report from Equifax, Experian or TransUnion first so that you can become aware of any potential issues and dispute any inaccuracies beforehand.
#7: The Fair Chance Act Is Now In Effect. Known as a ‘Ban The Box’ law, the Fair Chance Act that went into effect in California on January 1, 2018 prohibits employers with five or more employees from asking about your conviction history before making you a job offer. There are some exceptions, including certain positions at health care facilities, farm labor contractors, or positions with state criminal justice agencies. It also does not apply to any position where an employer is required by another law to conduct background checks or restrict employment based on criminal history.
#8: Several Salary Ban Laws Are Now In Effect. Since January 1, 2018, California employers have been prohibited from seeking historical salary information from an applicant. On January 1, 2019, the Fair Pay Act Bill took effect and clarified the application of the state’s Equal Pay Act. In practice, the laws mean that an employer is required to provide a pay scale to an applicant that has completed at least one interview (not every individual who applies). ‘Pay scale’ is defined as a salary or hourly wage range.
#9: Understand What Actions Must Preempt An Adverse Action Notice. A California employer must conduct an individualized assessment to determine if any information that is discovered and used to disqualify the candidate is relevant to the job. If so, the employer must provide the candidate with a Pre-Adverse Action Notice and copy of the “Summary of rights under the FCRA”.
#10: Consider The 5 Day Response Period. Upon receiving the Pre-Adverse Action Notice, a job candidate may choose to respond by disputing the information and/or providing evidence of rehabilitation or mitigating circumstances. If this data is supplied within 5 days, the employer must consider this new information before proceeding with the Adverse Action. If such path is still chosen after the new information has been reviewed, the employer must also notify the candidate of their right to file a complaint with the Department of Fair Employment and Housing.
While this is a lot of detailed information, we feel it is important for you to know your rights and the rights of employers. Feel free to reach out to us with any questions you may have. While you’re here, take a look at our open positions.
What Job Applicants and Employees Should Know: https://www.eeoc.gov/eeoc/publications/background_checks_employees.cfm
Q&A: What’s Included in an Employment Background Check?: https://www.indeed.com/career-advice/finding-a-job/whats-included-in-an-employment-background-check
Employment Background Checks in California: A Focus on Accuracy: https://www.privacyrights.org/consumer-guides/employment-background-checks-california-focus-accuracy
California Fair Chance Act (AB 1008) – “Ban the Box” Frequently Asked Questions: https://www.dfeh.ca.gov/resources/frequently-asked-questions/criminalhistoryinfoinemploymentfaqs/
California’s Special Adverse Action Requirements: https://iprospectcheck.com/californias-special-adverse-action-requirements/
California Provides Guidance Regarding Its Salary History Ban: https://www.littler.com/publication-press/publication/california-provides-guidance-regarding-its-salary-history-ban