Hiring and Background Checks

The Ninth Circuit’s recent ruling in Dutta v. State Farm Mutual Automobile Insurance Company highlights the importance of evaluating and potentially challenging a plaintiff’s standing in a Fair Credit Reporting Act (“FCRA”) action.

Dutta alleged that, in violation of § 1681b of the FCRA, State Farm failed to provide him with notice of his FCRA

The Department of Fair Employment and Housing (“DFEH”) finalized new regulations limiting the ability of employers to consider criminal history when making employment decisions.  The regulations become effective on July 1, 2017.  Employers should reexamine their policies and practices of using criminal histories in employment decisions before the regulations take effect.  The new regulations are

Effective July 1, 2017, new regulations will further limit employers’ ability to consider criminal history when making employment decisions.

On March 27, 2017, the Office of Administrative Law approved the Fair Employment Housing Counsel’s new regulations clarifying existing limitations on criminal background checks and, in large part, conforming to the Equal Employment Commission’s position that

The Los Angeles Fair Chance Initiative for Hiring Ordinance “FCIHO” went into effect on January 22, 2017. The Bureau of Contract Administration, the Designated Administrative Agency responsible for enforcing the Ordinance, has issued “Rules and Regulations” for the FCIHO. Click here for highlights and more information on the regulations.

On September 27, 2016, Governor Jerry Brown signed Assembly Bill 1843, which prohibits certain inquiries into the criminal past of applicants for employment.  The new law now adds a prohibition against asking about, considering as part of the hiring process, or attempting to discover, information relating to any “arrest, detention, processing, diversion, supervision, adjudication, or

With holiday hiring in full swing, it’s a good time to review what should and should not be asked on employment applications.

What Not to Ask

Any questions designed to elicit information about an employee’s protected characteristics or status should be avoided. Exceptions exist for bona fide occupational qualifications.  A BFOQ is a work requirement

The California Supreme Court will decide if the California Investigative Consumer Reporting Agencies Act (ICRAA) is unconstitutionally vague. In Connor v. First Student Inc., the Court of Appeal rejected an employer’s argument that the ICRAA was unconstitutional because the employer could not ascertain whether it was required to comply with it or the California Consumer Credit Reporting Agencies Act. The former governs background checks obtained from third party agencies concerning information pertaining to a consumer’s character, personal characteristics, general reputation or mode of living.  The second applies to reports containing information regarding a consumer’s credit worthiness, credit capacity or credit standing. Both Acts, however, refer to identical categories of information (for example, criminal histories, civil judgments and bankruptcies) when imposing limits on information that can be disclosed. 
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If a background check includes information about a job applicant’s character, California’s background check law applies, the California Court of Appeal has held, rejecting an employer’s challenge to the California Investigative Consumer Reporting Agencies Act (Cal. Civ. Code § 1786 et seq.) (“ICRAA”). Connor v. First Student, Inc., No. B256075 (Cal. Ct. App. Aug. 12, 2015).
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1335488_24491270It may be time to review your company’s employment application and hiring process. The common “Have You Ever Been Convicted of a Felony?” question on employment applications will soon be a thing of the past for many California state and local agencies and private sector employers hiring or recruiting applicants to work within the City and County of San Francisco.

Effective July 1, 2014, state and local government agencies will no longer be permitted to ask a job applicant to disclose, in writing or verbally, if they have been convicted of a crime.
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