- Tips for Job Seekers
- Federal FCRA - Basics of Employment Background Checks
- Background Checks in California - FCRA Plus
- Screening by an Employer or an Outside Firm
- What Cannot be Included in a Background Report?
- Penalties for Violations
Note: PRC does not perform background checks.
If you are looking for a job in California or even if you have one, an employer is almost certain to seek information about you. It's what you can expect as employers today are faced with news of workplace violence, falsified credentials, embezzlement, and lawsuits that result from bad hiring decisions.
You, on the other hand, have well-founded concerns if an employer asks about things that have no apparent connection to the job. You may also worry that an incident from long ago will be discovered, but that you will not get a chance to explain.
You may not have a skeleton in the closet or even be particularly concerned that your employer knows a lot about your private life. But, you certainly want to know that the information the employer receives is accurate, complete, and not misleading. You also want to know that the report is about you -- and not an identity thief who has stolen your good name.
This guide provides a summary of the Fair Credit Reporting Act (FCRA), the national standard for employment background checks. It describes how California law adds to the rights you have under the FCRA. It also explains your right to get a copy of a background check and what to do if your report includes inaccurate or incomplete information.
Applying for a job is among the most crucial tasks we face in life. No one wants to be disadvantaged by a negative background check. Before you embark on that job-seeking journey, we recommend that you take the following steps. Do the same if your current employer tells you that existing employees will undergo job screening.
- Read this guide and other publications to learn your rights under federal and state law. Additional publications are listed in Part 8.
- Order your credit report and examine it carefully for inaccurate or misleading information. Many employers obtain credit reports when conducting background checks on job applicants and existing employees. Be aware that an employer in California can only request your credit report for certain positions (see Part 6 of this guide).
- Check court records. If you have an arrest record or have been involved in court cases, check the files at the county where the incidents were filed. Make sure the information is correct and up to date. This is very important if your case has been expunged, sealed, or dismissed, or if you have been a victim of criminal identity theft.
- Check DMV records. Request a copy of your driving record from the Department of Motor Vehicles, especially if you are applying for a job that involves driving.
- Do your own background check. If you want to see what an employer's background check might uncover, hire a company that specializes in such reports to conduct one for you. That way, you can look for any erroneous or misleading information.
- Clean up your "digital dirt." Conduct a search on your name -- in quotation marks -- using a search engine. If possible, remove unflattering references. If you have created profiles in social networking websites such as Facebook, review, and if necessary, edit your postings. Re-read any blog entries from the perspective of a potential employer. Remove or edit postings that could harm your jobseeking efforts. But don't necessarily remove online content that shines a light on your positive achievements. A personal website or blog that highlights your good deeds could benefit you.
- Read the fine print carefully. When you sign a job application, you will be asked to sign a consent form if a background check is conducted. Read this statement carefully and ask questions if the authorization statement is not clear. Unfortunately, jobseekers are in an awkward position, since refusing to authorize a background check may jeopardize the chances of getting the job. Always check the box that says you want to obtain a copy of the report.
- Report employers and California background screening companies that do not follow the California Investigative Consumer Reporting Agencies Act (CA Civil Code Sec. 1786) to the Attorney General's Office of Public Inquiry Unit, (916) 322-3360 or toll free in CA 800-952-5225. Or visit the AG's contact website.
For additional tips, read the PRC’s Consumer Guide Employment Bcackground Checks: A Jobseeker's Guide.
The federal Fair Credit Reporting Act (FCRA) sets the national standard for employment background checks. (15 U.S.C. §§1681 et seq.) Even in states like California that have laws governing background checks, employers have to follow the FCRA. State laws may give more rights to workers, but they cannot take away from the basic rights of the FCRA.
The FCRA covers "consumer reports" issued for multiple purposes, and this is a source of confusion to many individuals. In addition to covering credit checks, the FCRA also governs employment background checks for the purposes of "hiring, promotion, retention, or reassignment." To learn more about credit reporting, read our Consumer Guide, Credit Reporting Basics: How Private Is My Credit Report.
The federal FCRA applies only when an employment background check is prepared by an outside screening company. When a third party compiles a report, the FCRA requires (1) that you are notified that an investigation may be performed, (2) that you are given the opportunity to consent, and (3) that you are notified if information in the report is used to make an "adverse" decision about you.
But under the FCRA, if the employer does not hire a third party to conduct the investigation, but compiles the report itself, the provisions of the FCRA do not apply. However, California law does require some notice and access if the employer conducts its own report. This is discussed in the Part 4 below.
When an outside company prepares the report, the FCRA requires the employer to:
Give you notice on a separate document that a report may be required.
Obtain your permission.
Get your specific permission if medical information is requested.
Give a specific notice if your neighbors, friends, or associates will be interviewed about your "character, general reputation, personal characteristics, or mode of living." This is called an "investigative consumer report" under the FCRA.
Under the FCRA, negative information usually cannot be reported after seven years. Exceptions apply for bankruptcy information (10 years) and jobs or insurance policies over a certain dollar amount. The FCRA says that criminal convictions can be reported indefinitely.
The employer must give you a "pre-adverse action notice" along with a copy of the background report before an adverse action is taken. For job applicants, an "adverse action" means the employer has decided not to hire you based on the information in the report. For existing employees, an adverse action might be termination. Or it could be a decision to not promote you, or to demote you.
You should get a second notice after an adverse action, telling you how to dispute inaccurate or incomplete information. For more on employment background checks under the FCRA, see the Federal Trade Commission publication, "Using Consumer Reports: What Employers Need to Know." Also read our Consumer Guide Employment Background Checks: A Jobseeker’s Guide
California law is broader in scope than the federal FCRA. It covers third-party employment screeners, as does the FCRA. But it also covers employers who conduct background checks themselves, something that the FCRA omits.
Applicants and employees in California have all the rights of the FCRA and more, but there are differences. Two of the most obvious differences are the meaning of some terms and the notice that starts the employment checking process.
Terms used in California. In California, an employment background check is called an "investigative consumer report" (ICR). Your rights and an employer's obligations are included in the Investigative Consumer Reporting Agencies Act (ICRAA). (CA Civil Code §1786)
Under the federal FCRA, an "investigative consumer report" is limited to personal interviews with your friends, neighbors or business associates. In California, an ICR covers your "character, general reputation, personal characteristics, or mode of living" obtained through "any means." Under California law, a company that collects information for employers and compiles reports is called an Investigative Consumer Reporting Agency (ICRA).
The term ICR does not include credit reports. If an employer in California wants to see your credit report as part of an employment background check, that report is also governed by the Consumer Credit Reporting Agencies Act (CCRAA). (CA Civil Code §1785)
An employer in California can only request your credit report for certain positions. If the position falls into one of the categories that allow a credit check, the employer must give notice that a credit check will be obtained, along with an explanation of why the check is allowed. For more on credit checks for California jobs see Part 6 of this guide.
How the process begins in California. A job applicant in California or a current employee gets a more extensive notice than the one required under the FCRA. In California, before a background check is conducted by an outside screening company called an ICR agency, you should receive a notice that:
States the purpose of the report.
Gives the name, address, and telephone number of the screening company.
Includes a summary of your rights to see and copy any report about you.
Includes a box to check if you want a copy of your report.
If you indicate you want a copy of your report, it should be sent within three business days of the date the employer receives it. The report may come from the employer or from the screening company.
If the employer conducts a background check itself, without using an outside ICRA, the job application form or a related document should include a box to check indicating that you want a copy of public records obtained in the investigation. California law does not require an employer who conducts a background check in-house to give you the same detailed notice that is required when an outside agency is retained. But you do have the right to receive a copy of the public records compiled in the report. We advise that you always indicate to the employer that you want to see the public records report.
Posted privacy notices must include, as a minimum, the company's policy regarding personal information transferred to third parties outside the United States and contact information for a company representative who can assist with further questions.
Screening companies are also liable for harm stemming from unauthorized access to personal information that occurs outside the United States.
Can an employer run a check without my permission?
You must give your authorization in writing before an employer can start the investigation process through a screening agency. Again, your written permission is required by the FCRA as well as the California ICRAA. Like the FCRA, California law requires your specific authorization if information about your medical history or condition will be obtained.
For employer-conducted screening in California, the permission and notice requirements are less rigid. A cautious employer may ask for your consent, even to do an in-house investigation. However, the only real indication that a background check will be conducted may come in an application or other document. A California employer that conducts its own investigation must give the subject an opportunity to give up the right to get a copy of public documents.
There is one exception in California. Your permission is not required and you are not entitled to notice if your employer suspects you of wrongdoing or misconduct.
Is my permission required each time my current employer investigates me?
Remember, background checks are not limited to job applicants. Employers are increasingly conducting investigations of existing employees. Under the FCRA, once you give your permission for a background check, your employer does not have to get your permission to run another check in the future. However, California law requires notice and permission from you "at any time an investigative consumer report is sought for employment purposes other than suspicion of wrongdoing or misconduct." (CA Civil Code §1786.16(2))
Does my authorization mean that a check will definitely be made?
Not necessarily. The notice you receive will quite likely say that an ICR may be obtained. Once you receive the notice and give your authorization, an employer is free to conduct a background check or not. Because of the cost involved, it is unlikely that an employer will conduct a background check of every applicant for a job. For applicants, an investigation is typically conducted just before a job offer.
Does an employer have to tell me exactly what the check will include?
The California ICRAA says that an employer must give you a "clear and conspicuous" notice in writing of the "nature and scope" of the report. (CA Civil Code §1786.16(2)(B)(v) ) This only applies when the employer is using a screening company. This does not mean you will get a detailed list of things the employer wants to check. Instead, expect to see a form notice that is used for a variety of jobs. The ICRAA allows an employer to investigate your "character, general reputation, personal characteristics, and mode of living." (CA Civil Code §1786(B)(iii)) The notice will likely contain these very words, taken directly from the law.
There are many possibilities for what can be covered in an employment background check. The employer is likely to want to verify your prior employment and education. A credit check and a criminal background check are also often requested. Depending on the job involved, your driving records may be obtained. For more on the kinds of information that may be included in an employment investigation, see our guide "Employment Background Checks: A Jobseeker's Guide."
Why is California law on employment checks stronger than the FCRA?
Many websites now sell personal information, much of which is gathered from public records. Some sites boldly claim to "find out anything about anybody." Information is usually cheap, often under $30 for a basic report.
There is no assurance of accuracy or completeness of information gathered this way. Under the federal FCRA, you do not have the right to receive notice, nor do you have the ability to dispute inaccurate or incomplete information if the employer conducts its own investigation rather than hire a third party reporting agency. Without an obligation to verify and update information, there's great potential for inaccuracies.
False information can result from a number of factors. A data broker may report information that confuses you with someone who has a similar name. Or the data broker may fail to update crucial information. For example, if you were arrested but not convicted, this information should not be in an employment background check report. In the worst case, someone else may have committed a crime or opened credit accounts using your name and personal information. And the results of this identity theft could end up in your background report.
Background checks conducted by an employer (no third-party company used)
You have the right in California to get a copy of public records an employer gathers in the process of checking your background. (CA Civil Code §1785.53) An employer who violates the California ICRAA is subject to the same penalties that apply to an outside screening agency. (See Part 7 for more on penalties.)
Does the employer have to give me all information it gathers?
No. The employer only has to give you a copy of any public records obtained in checking your background. This could include documents that pertain to an arrest (if it results in a conviction), indictment, conviction, civil judicial action, tax lien, or outstanding judgment. Such records can be obtained if an employer goes directly to the public source or uses an Internet site that collects public records and sells the information.
Nearly all the information compiled in a background check consists of public records. Non-public record information might include reference checks with past employers and a verification of your education credentials. You are not entitled to get information an employer receives by checking your references. By the way, if a third party conducts the investigation (discussed below), employment references are also exempted from the report that the individual is entitled to receive.
Will I know if an employer is conducting its own check, rather than using a third party?
As indicated earlier, the same formality does not apply when an employer conducts an investigation itself. For instance, you won't get the detailed notice you would receive if the employer hires an outside agency (described above in Part 4) and you may not be asked to give your permission for the investigation on a separate document.
But, if an employer chooses a self-screening method, you should see a box to check on an application or other document that asks if you waive (give up) your right to get a copy of public records the employer gathers. Such notations require a close reading because to check the box may indicate a negative response, for example, you don't want the public records report.
If you do not waive your right, the employer must give you a copy of public records within seven days after receipt. We recommend that you always indicate that you want the public records. This is a right unique to California employees, one that will help you learn what employers see.
If I waive this right, can I ever get a copy of my records?
Even if you do waive this right, the employer has to give you a copy of the records if an adverse employment action is taken against you. If the employer decides, for example, to fire you based on something that turned up in public records, you are still entitled to a copy of public records - even if you once said you did not want a copy.
If an employer checks your background because of suspected misconduct, you are only entitled to a copy of public records (1) after the investigation is completed and (2) if you did not earlier waive your right to a copy of the records.
What happens if the public records report contains inaccurate information?
The law is not clear on the dispute process if the employer conducts the investigation itself without using an outside company. We advise that you dispute in writing any inaccurate information compiled from public records by an employer who conducts its own investigation. Request that the employer re-investigate the public records compiled in the report. Provide documentation that would explain why the employer is retrieving inaccurate or out-of-date public records information, for example, identity theft-related documents, or court records regarding records that have been expunged.
Background checks conducted by a screening company (ICR agency)
If an employer hires an outside company to check your background, you must be given a written notice and then provide your consent as described above in Part 4. (CA Civil Code §1786.16) A screening company, called an investigative consumer reporting agency in the law, cannot go forward with the check unless the employer has certified that the report will only be used for a permissible employment purpose.
If you tell the employer you want a copy of the report, you should get it within three days after the employer receives it. The report should also give you the name, address, and telephone number of the person or agency that conducted the background check. California law also requires that the report's cover page:
Include a notice in at least 12-point boldface type saying that the report does not guarantee the accuracy or truthfulness of the information, but only that the information was copied from public records.
Include a warning that negative information could be the result of identity theft.
Gives notice in English and Spanish of your rights.
Do any laws apply to all background checks?
Yes. Whether conducted in-house or through a third-party screener, state and federal discrimination laws apply. The issue may arise when a background check report includes a criminal record. The U.S. Equal Employment Opportunity Commission (EEOC) has said that use of criminal history may sometimes violate Title VII of the Civil Rights Act of 1964. This can happen, the EEOC says, when employers treat criminal history differently for different applicants or employees.
The EEOC has issued extensive guidelines for employers in considering the criminal history of a job applicant or employee. The EEOC cites the most important considerations as: (1) the nature and gravity of the offense; (2) the time that has lapsed since the offense; and (3) the nature of the job. To aid in compliance with Title VII, the EEOC guidelines provide employers with examples of best business practices. The EEOC’s guidelines are found in the publication Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
Can I see a copy of what the ICR agency has on me?
You are entitled to see most information collected about you. You will not find out the sources of information, other than from public records, unless there is a court action.
You have a right to see your "file," that is, the raw data the agency used to compile the report. To see the file, you must make a prior arrangement and present proper identification, which could include a valid driver's license, a Social Security number, military identification, and credit cards. You can request access to your file in person, by certified mail, or through a telephone conversation. You may also take another person with you when you view the file.
How long do I have to get a copy of my report and review the ICR agency's file?
The agency that prepared the report must retain it for two years. During that time, you have a right to access it.
What if the report contains inaccurate or incomplete information?
You can dispute inaccurate or incomplete information. When you file a dispute, a process much like the one you use to dispute information in a credit report is triggered. Here's a summary of how the dispute process works: (CA Civil Code 1786.24)
You file a dispute in writing and provide evidence.
The employment screening agency must investigate your dispute.
If the agency cannot verify the information you disputed, the information must be removed.
The agency does not have to continue an investigation if it decides your complaint is "frivolous or irrelevant."
The agency has 30 days to notify you of the results of the investigation.
You have to be notified if negative information is deleted but later reinserted.
If the agency will not remove negative information, you can include your own statement in the file.
If the inaccuracy is a result of identity theft in which someone committed a crime under your name, visit the California Attorney General's website for information on how to register that inaccuracy.
California law (ICRAA) follows the FCRA's general seven-year rule as the limit for reporting negative information on an employment background check. One exception is that under the FCRA criminal convictions can be reported indefinitely. In California, criminal convictions can only be reported for seven years unless another law requires employers to look deeper into your background. California also follows the ten-year limit for reporting bankruptcies, the same as the FCRA. (CA Civil Code 1786.18)
Background check reports often include information from public records. In California, a background checking agency cannot include public record information in an employment check unless it has verified the accuracy of the information during the 30-day period before the report is issued. This applies to such information as arrests, indictments, convictions, civil actions, tax liens, and outstanding judgments.
California law also differs from the FCRA for other reporting requirements, as follows:
- Arrest, indictment, information, misdemeanor complaint. Arrests and the formal charges shown in an indictment, information or complaint that result from an arrest can be reported for up to seven years in California. But these records cannot be reported if a conviction did not result. However, they can be reported pending judgment. This means if you were arrested and the matter has not come to trial or has otherwise not been resolved, it can still be reported in an employment background check.
- Criminal convictions. Unlike the indefinite standard of the FCRA, criminal convictions in California can only be reported up to seven years. Convictions cannot be reported if a full pardon has been granted.
The ICRAA does 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 for criminal convictions far beyond the seven-year limit included in the ICRAA. For example, operators of residential care facilities for the elderly and the facility's employees are subject to a "full criminal records" check. (California Health and Safety Code §1569.17)
In addition, occupations that require a state license often require an extensive criminal background check.
Can an employer ask about an arrest or conviction that should not be reported?
No. The so-called "Ban the Box" law in the California Labor Code says an employer cannot ask about:
Any arrest or detention that did not result in a conviction.
Any arrest for which pretrial diversion has been completed.
Criminal records that have been expunged, sealed or dismissed.
Public sector employers (California state and local agencies, cities and counties) are prohibited from asking about criminal records on employment applications. Public sector employers must review an applicant's qualifications before inquiring about their conviction history.
In addition, effective January 1, 2018, AB 1008 makes it unlawful for private employers with five or more employees in California to include on any employment application any question that seeks the disclosure of an applicant’s conviction history before the employer makes a conditional offer of employment to the applicant. AB 1008 also makes it unlawful to inquire into or consider the conviction history of the applicant until after the employer has made a conditional offer of employment to the applicant.
Provisions of the Labor Code are reinforced in regulations of the California Department of Fair Housing and Employment. (See: 2 Cal. Codes Regs Sec. 7287.4(d)(1) (Register 95, No. 29: 7-21-95) A Department publication lists questions that are inappropriate for a California job applicant.
Please note: References in this guide to laws that set limits on what an employer can ask are included only to alert consumers to their existence. Application of such provisions to specific situations requires consultation with an expert in labor law.
Can an employer ask me or my former employer(s) about my salary history?
Effective January 1, 2018, AB 168 prohibits an employer from seeking salary history information about an applicant for employment. Salary history information includes both your rate of compensation and information about other benefits. The law applies to all employers, including state and local government employers. This does not prohibit an applicant from voluntarily disclosing salary history information.
Can a criminal record ever be erased?
In some cases, a criminal record may be what the law calls "expunged." Technically, the term means to erase or strike out. Despite the definition, an expunged record does not necessarily mean that all traces of an offense will disappear from the courthouse and/or from the Internet websites of information brokers. Even if a record is expunged, the fact that there was a conviction may not be blocked, even if the details of the case are erased from public view.
And the fact that a record is expunged does not mean that you will never have to disclose the information. Application for a state license or a specific kind of job may demand disclosures of information that covers your lifetime.
The processes that allow for records to be expunged or otherwise changed are beyond the scope of this fact sheet. If you have concerns about a prior conviction or how to cleanse your record, you should consult an attorney, a probation officer, or check the court where the record is located. Also visit The Expunged Record website.
The California law regarding expunction or deletion of a criminal record is California Penal Code §1203.4.
Can an employer check a national data base for criminal convictions?
The FBI maintains a criminal records data base, called the National Crime Information Center (NCIC). It can be accessed for some, but not all, criminal history checks. Whether an employer has access to the NCIC depends on the kind of job involved.
The 1993 National Child Protection Act (42 USC §5119) authorizes states to establish procedures for national criminal history checks using the NCIC for employees and volunteers who work with children, the elderly, and persons with disabilities. For more on the NCIC, visit the joint website of the FBI and the Federation of American Scientists.
The California Attorney General maintains a program to check fingerprints electronically called Live Scan.
Some screening agencies consult companies that compile public record information obtained from courts and other government sources throughout the nation. Legitimate background screening companies consult only reliable sources, ones that comply with the FCRA.
Can a background check in California include my credit report?
A California employer cannot review your credit report unless the job falls into one of numerous exceptions.
Jobs that allow a credit check include:
A position in the state Department of Justice
A managerial position
A position as a sworn peace officer or other law enforcement job
A position for which the information is required by law
A position that involves access to specified personal information
A position in which the person is a named signatory on the employer's bank or credit card account
A position that involves access to confidential or proprietary information
A position that involves regular access to $10,000 or more of cash
If you are a job applicant or employee, the employer who orders your credit report must give you notice that a credit report will be ordered along with an explanation of what exemption allows this access.
Violations of the ICRAA can result in stiff penalties for the company that issued the report and for the user of the report (the employer). (CA Civil Code 1786.50) Under the ICRAA you can sue for actual damages or $10,000, whichever is greater. Class action lawsuits are allowed. Court costs and attorney fees can also be awarded. And the court can award punitive damages if it finds the violation was grossly negligent or willful. The right to sue for privacy invasions or defamation are not affected.
Can I sue an employer and/or employment screening company?
Yes. Both California and federal law enable individuals to sue (CA Civil Code §§1786.20, 1786.1786.50; FCRA 15 U.S.C. §§1681n, 1681o).
Before seeking legal help or contacting a mediator, remember that both California law and the FCRA have built-in measures for resolving disputes. In most situations, the dispute procedures spelled out in the law should be followed before taking the next step.
To determine if your specific situation would fall under the provisions of California or federal law, we advise that you talk with an attorney who specializes in employee rights.
The website of the National Employment Lawyers Association provides a directory of member attorneys. The search box is in upper left hand corner.
The website of the California Employment Lawyers Association provides a member directory.
Most local bar associations provide free or low-cost attorney referral services.
Instead of going to court, an employee might consider an alternative dispute resolution procedure such as mediation.
Investigative Consumer Reporting Agencies Act (ICRAA), CA Civil Code §1786 et seq.
Consumer Credit Reporting Agencies Act (CCRAA), CA Civil Code §1785 et seq.
To access the California Civil Code, visit the California Legislative Information website.
Fair Credit Reporting Act (FCRA) (15 U.S.C. §§1681 et seq.)
Federal Trade Commission, "Using Consumer Reports: What Employers Need to Know"
Federal Trade Commission, "Disputing Errors on Credit Reports"
Privacy Rights Clearinghouse. "Employment Background Checks: A Jobseeker's Guide"
U.S. Equal Employment Opportunity Commission, "Background Checks: What Job Applicants and Employees Should Know"
U.S. Equal Employment Opportunity Commission, "Background Checks: What Employers Need to Know"
Employee and Consumer Rights Organizations
National Employment Lawyers Association
Phone: (415) 296-7629
California Employment Lawyers Association
Phone: (818) 703-0587
"Why California Is Different," Employment Screening Resources
"Ten Critical Steps for Ex-Offenders to Get Back into the Workforce," by Les Rosen, Esq., November 2015
The Expunged Record, a comprehensive guide to expunged records in employment background checks
The Privacy Rights Clearinghouse developed this guide with funding from the Rose Foundation Consumer Privacy Rights Fund.
We acknowledge the assistance of Les Rosen, Employment Screening Resources, in reviewing this guide.