['Recruiting and hiring']
['Background Checks']
04/26/2024
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Summary of differences between federal and state regulations
Arrest record inquiries
In California, an employer may not ask an applicant about any arrest that did not lead to conviction nor any arrest whereby the applicant successfully completed a pretrial diversion program. However, an employer may ask an employee or applicant about an arrest if the person is out on bail or on his or her own pending trial. These prohibitions do not apply to those employed as or seeking employment as a peace officer, Department of Justice worker, or certain healthcare workers who have access to patients or drugs. See the “Pre-Employment Inquiry Guidelines” (DFEH-161) from the Department of Fair Employment and Housing for more information.
Conviction record inquiries
Effective January 1, 2018, private employers with five or more employees in California may not inquire into an individual’s conviction history before a conditional offer of employment has been made.
California also prohibits an employer from asking about conviction records that have been sealed, expunged, or statutorily eradicated. See the “Pre-Employment Inquiry Guidelines” (DFEH-161) from the Department of Fair Employment and Housing for more information.
Employer immunity from disclosure claims
In California, an employer/former employer may disclose a communication about job performance or qualifications of a person to a prospective employer upon request if:
- The communication is based on credible evidence,
- The communication is made without malice, and
- The employer/former employer believes he/she is communicating with a prospective employer.
This includes saying whether or not he/she would rehire the employee/former employee. This does not include any communication about speech or activities protected by the constitution or law.
A former employer may disclose a truthful statement about why a former employee was discharged or left voluntarily, according to Labor Code Section 1053.
No business establishment may blacklist a person because of the reasons listed under the California Civil Code 51.5. An employer may not use or allow the use of misrepresentation to prevent or try to prevent a former employee from obtaining employment.
Consumer credit reports
Effective January 1, 2012, an employer or prospective employer (with the exception of certain financial institutions) may not obtain a consumer credit report, as defined, for employment purposes unless the position of the person for whom the report is sought is (1) a position in the state Department of Justice, (2) a managerial position, as defined, (3) that of a sworn peace officer or other law enforcement position, (4) a position for which the information contained in the report is required by law to be disclosed or obtained, (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, (6) a position in which the person is or would be a named signatory on the employer's bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer's behalf, (7) a position that involves access to confidential or proprietary information, as specified, or (8) a position that involves regular access to $10,000 or more of cash, as specified. In addition, the written notice informing the person for whom a consumer credit report is sought for employment purposes to must also inform the person of the specific reason for obtaining the report, as specified. (Labor Code 1024.5)
In addition, a person who procures or causes to be prepared an investigative consumer report for employment purposes must provide a consumer with the Internet Web site address or telephone number of the investigative consumer reporting agency where the consumer may find additional information about the agency's privacy practices. The investigative consumer reporting agency must conspicuously post on its primary Internet Web site information describing its privacy practices with respect to its preparation and processing of investigative consumer reports, or, if it does not have an Internet Web site, to mail a written copy of the privacy statement to consumers upon request.
State
Contacts
Employer immunity from disclosure claims
California Department of Fair Employment and Housing
California Department of Industrial Relations
Arrest record inquiries
California Department of Fair Employment and Housing
Conviction record inquiries
California Department of Fair Employment and Housing
State Regulations
Employer immunity from disclosure claims
California Civil Code Section 47
California Civil Code Section 51
California Labor Code Section 1050
California Labor Code Section 1052
California Labor Code Section 1053
Arrest record inquiries
California Labor Code Section 432.7
California Penal Code Section 13203
California Code of Regulations 2 CA ADC Section 11017
Conviction record inquiries
California Labor Code Section 432.7
California Penal Code Section 13203
California Code of Regulations 2 CA ADC Section 11017
Consumer credit reports
California Labor Code Section 1024.5
Civil Code Section 1786.10–1786.40
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
Conviction record inquiries
None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.