EMPLOYMENT LAW BULLETIN

Vol. 02, No. 11

Courtesy of Eskridge Law, Attorneys at Law

Although recent legislation pertaining to background checks of applicants and employees have clarified and somewhat eased requirements, the procedures remain quite rigorous as can be seen from the following overview, and heavy penalties (of $10,000 and up) still apply.

Investigations conducted by agencies:

An employer who hires an investigator to conduct a background check must provide notice and obtain consent from the applicant/employee. This is achieved by having the applicant/employee sign a notice and consent form containing the following information:

• A statement that an investigation regarding the applicant's/employee's character, general reputation, personal characteristics, and mode of living will be made;
• The name, address and phone number of the investigative agency that will compile the report;
• A summary of the person's right, under Civil Code § 1786.22, to view the information;
• A statement that the investigation report will be used for employment purposes only, including hiring, promotion, retaining or re-assigning an employee; and
• A check-box for the applicant/employee to request a copy of the report.

The notice and consent form must be a stand-alone document, signed by the applicant/employee no more than 3 days before the employer requests the investigation. An employer who denies employment based on information contained in the report must notify the applicant/employee of that fact and again provide the name and address of the investigative agency that compiled the report.

Investigations conducted directly by the employer:

If an employer conducts the investigation, no advance notice to the applicant/employee is required, and information obtained need not be disclosed unless it is a matter of public record. Public records are defined here as "records documenting an arrest, indictment, conviction, civil judicial action, tax lien or outstanding judgment." Copies of public records must to provided within 7 days unless the applicant/employee has previously waived the right to receive them by checking a box on the application, employee manual or any other written form. If the employer takes adverse employment action based on information obtained from public records, copies must be provided even if the applicant/employee has waived his or her right to receive them.

Important exception: Whether conducted by an investigator or by an employer, there is no requirement for notice, consent or providing copies of documents if the investigation is conducted due to suspicion of misconduct or wrongdoing.

Eskridge Law, Attorneys at Law, may be contacted by phone (310/792-7021), by fax (310/792-7022) or by e-mail (geskridge@ealaw.net). Please visit our web site at www.ealaw.net or www.employmentattorneys.net.

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