Commercial Criminal Background Checks and
the Fair Credit Reporting Act (FCRA)
When you work or apply at a company which is going to run a background check on you, there are laws which govern both the employer and the background checking company (also known as a consumer data broker). You have rights and protections under both the federal law (known as the Fair Credit Reporting Act- FCRA) and under California law (known as the Investigative Consumer Reporting Act- ICRAA, CA Civil Code 1786).
Your Rights when Subject to a Criminal Background Check as an Employee or Job Applicant in California
Employer's Responsibilities under FCRA
An employer must first get your permission before running a criminal background check, except when an employer suspects an employee or misconduct.
You have the right to request a copy of the background report at the time you give permission for the background check. You should always ask for a copy to endure that the report is accurate. If there is not place to request a copy, you should hand-write the request for a copy on the job application.
Before taking any adverse action- an adverse action would include not hiring you, not promoting you or firing you, you are entitled to notice of the adverse action and a copy of the report. You should get a 2nd notice after the adverse action, telling how to dispute inaccurate or incomplete information.
Background Checking Company's Responsibilities under FCRA
In California, a background checking company may not:
- report convictions which are older than 7 years old
- report arrests that did not end in conviction, unless the case is still pending
- report dismissed misdemeanors
In California, a background checking company must:
- verify the accuracy of the information that they are reporting within 30 days of providing it to an employer
- use due diligence in verifying the accuracy of the information they are reporting
- investigate a report of inaccuracy and must remove any information that it cannot verify
- provide the results of their investigation into disputed information within 30 days
In California, criminal convictions can only be reported for 7 years unless another law requires employers to look deeper into backgrounds. Remember, FCRA and ICRAA do not apply if another law requires a government agency or employer to conduct a certain type of background check. Many jobs require an employer to check criminal convictions far beyond the 7 year limit included in ICRAA. There are many occupations which require a state license which requires an extensive criminal background check of all employees and job applicants.
If you have been instructed to have a livescan for your state license or job, your criminal background will be checked through the California Department of Justice and not a commercial background checking company or commercial data broker. If you are being livescanned for a position, FCRA and ICRAA do not apply to you.
If you have questions about your rights under FCRA or if you think your rights may have been violated, please contact the LAW Project of Los Angeles so we can assist you in determining whether you have a valid claim.