Jun 29

Inhuman Resources: Why HR Background Checks Are Illegal

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Many in HR forget what the “H” stands for. These inhuman resources departments think their job is to keep everyone else from getting one. In the process, they think they can search any and all criminal records just because they’re “public.” Wrong. The Fair Chance Employment Act (FCEA) generally forbids an employer from seeking, asking about, or considering a criminal record. Even when it doesn’t, the Investigative Consumer Reporting Agencies Act (ICRAA) generally requires an employer to give an applicant a copy of the public record.

I. What Public Records Are Off-Limits to In-House Background Checkers?

Just because a record is public doesn’t mean an employer can always search for it. The FCEA prohibits any employer (other than a law enforcement agency) from seeking, asking about, or considering as a factor in determining any condition of employment a record of any of the following: (1) an arrest or detention that didn’t result in conviction; (2) a referral to, and participation in, any pre- or post-trial diversion program; or (3) a conviction that a court has dismissed or sealed.1 Like any law, however, the FCEA has exceptions.

A. Exceptions for Certain Arrests Not Leading to Conviction

The FCEA has several exceptions to the rule that an employer can’t dig through an arrest record. First, an employer can “ask” a job applicant or employee about an arrest for which he is out on bail or on his own recognizance pending trial.2 But the employer better thread the needle carefully. Evidently, the exception doesn’t let an employer “seek” the arrest record or ask anyone but the job applicant or employee about the arrest. (Presumably, the employer can still consider the arrest as a factor in determining a condition of employment.)

Second, a health facility can “ask” an applicant for a position that would let him access drugs or medication if he has been arrested for drug possession.3 Third, a health facility can “ask” an applicant for a position that would let him “regularly access” patients if he has been arrested for a registrable sex offense.4 Thus, a health facility can’t ask him if he has been arrested for serial rapes if he’d only have “irregular” access to patients, but it can ask him if he has been arrested for smoking a joint if he’d have any access to an aspirin.

B. Exceptions for Certain Convictions and Diversion Programs

Similarly, the FCEA lets an employer seek, consider, or ask a job applicant to disclose information about a judicially sealed or dismissed conviction or entry into any pre- or post-trial diversion or similar program. Those circumstances are: (1) any law requires the employer to obtain the information; (2) the employer would require the applicant to carry a gun on the job (e.g., an armored car driver); (3) any law prohibits a convict from holding his job; or (4) any state or federal law prohibits the employer from hiring a convict.5

But even some drug convictions can be effectively off-limits. California law prohibits employers from seeking, asking about, or considering records of certain marijuana-related convictions.6 Similarly, a job applicant who has been convicted of certain marijuana crimes to “truthfully” deny that he has ever been convicted of such a crime after two years have passed.7 In any case, the law mandates the destruction of a record of certain marijuana-related offenses within two years of the conviction or arrest.8

II. When Must an In-House Background Checker Hand Over a Copy of a Public Record?

The ICRAA requires an employer who uses his inhuman resources department for the purpose of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information from a public record about the character, general reputation, personal characteristics, or mode of living of the job applicant or employee to turn over a copy of the related public record within seven days after the employer receives the information.9 That’s true even if HR only briefed the employer about the public record during a meeting.10

The ICRAA requires all job applications to include a box that a job applicant can check to waive his right to a copy of a public record.11 The waiver only lasts until the employer takes adverse action against the job applicant or employee.12 But an employer who investigates a job applicant or employee on “suspicion” of “wrongdoing or misconduct” may withhold a copy of the public record: (1) for a “reasonable time” after the investigation ends13; or (2) forever if the applicant or employee checked the waiver box.14

  1. Lab. Code §432.7(a). 

  2. Id. 

  3. Id. 

  4. Lab. Code §432.7(f). 

  5. Lab. Code §432.7(m). 

  6. Lab. Code §432.8. 

  7. H&S Code §11361.7(c). 

  8. H&S Code §11361.5(a), (b). 

  9. Civ. Code §1786.53(a)(3). 

  10. Civ. Code §1786.53(b)(1). 

  11. Civ. Code §1786.53(b)(2). 

  12. Civ. Code §1786.53(b)(4). 

  13. Moran v. Murtaugh, Miller, Meyer & Nelson, 24 Cal.Rptr.3d 275 (2005). 

  14. Civ. Code §1786.53(b)(3). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.