A California-Sized Problem: CA Law and Compliance

February 19, 2020

California has more laws on background checks than any other state in the country.  These laws are also much more detailed than those of other states, making it important for employers to fully understand and update their policies accordingly.  

 

Why California Law Matters 

The many laws in California on background checks vary from credit check report laws, criminal information, credit history, and more.  These are just a few of the many detailed laws that California has put into place that have a potential impact on employers.  

California also allows individuals to recover damages in a way that most other states do not. 

California law states that even for a technical mistake that does not produce actual damages, an individual can recover a minimum of $10,000 per violation. 

With all of the intricacies of California law, it deserves much more attention than most other state laws. 

 

Determining if California Law Applies 

We know that California is somewhat of a hotbed for litigation. The state virtually produces more background screening cases than just about any other state in the country.  There isn’t clear information around when California law applies, but below are examples of when most industry experts say California law would apply:  

  • If a candidate or employee is residing in California at the time of the background check 
  • If a candidate or employee is going to be working in California but resides outside of California during the time of the background screening.  

It is best to assume CA law applies if an individual has any connection to California.  

Background Screening Areas Requiring Special Treatment in CA 

written-consent

Written Consent

There is a federal law that requires a disclosure to be given to any individual subject to a background check, and that the individual must provide written consent. But, this federal requirement has resulted in many lawsuits because of how vague the requirement is.  

The 9th Circuit which covers California recently reached a decision around this federal law that interprets the law in a very specific way. They determined that the disclosure of obtaining written consent as an employer becomes invalid if it includes certain additional information. For example, if the disclosure includes a summary of rights or state law notices, the disclosure is automatically invalid. 

In order to make sure that your disclosure as an employer remains valid, take a close look at your disclosure and remove any additional information outside of the consent requirements.  A general rule of thumb is “less is more” and it is best practice to separate authorization and disclosure forms. It’s best to involve legal counsel to avoid risk. California requires stand-alone disclosures beyond the FCRA disclosure, watch our full free webinar to discover the details of these requirements.

 

Criminal History 

California has very specific limitations on what an employer can and cannot use particularly on the criminal front. For example, an employer subject to California law cannot use pretrial diversion information in a hiring decision. So, if an employee or candidate has their first run-in with the law and agrees to a probationary term, that information cannot be used against them in the employment decision.  marijuana-usage

Similarly, California is also a state where it’s difficult to use marijuana usage against employees and applicants.  A recent law in California states that if an applicant was convicted of misdemeanor marijuana possession more than two years ago, the conviction cannot be used against them in an employment decision. 



 

Sex Offender Registry

California law places strict limitations on an employer’s ability to use sex offender registry information in the hiring decision.  CA law is more restrictive than any other state in the country. The law says that an employer can only use sex offender registry information to “protect a person at risk”.  

Employers often have concerns about this limitation and the risk it could put on their employees, and the law is specific in saying that it is particularly protecting those that are more vulnerable like the elderly, children, or those with physical or mental disabilities. This means that in many employment situations that aren’t for a nursing home, daycare, or the like, this sex offender registry information cannot be used against an applicant according to California law. 

California has many laws that differ from federal law and from other state laws. In order to fully grasp this California-sized problem, watch our webinar here where we cover CA law and it’s municipal laws so employers can be aware of how to best navigate these intricacies and stay in compliance. 

Orange Tree is committed to keeping you up-to-date and informed on the latest changes in the background screening and hiring industries.  Subscribe to our blog to keep up with our latest content, or schedule a meeting to find out how Orange Tree can drastically improve your background screening process.

 

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