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Total Articles: 12

California Just Banned the Box!

On October 14, Governor Brown signed AB 1008 to prohibit most public and private employers with five or more employees from asking applicants about criminal conviction histories until after a conditional offer of employment has been made. The new law will become effective January 1, 2018.

California Employers Should Reevaluate Their Criminal Background Check Policies Before July 1, 2017

The Department of Fair Employment and Housing (“DFEH”) finalized new regulations limiting the ability of employers to consider criminal history when making employment decisions.

Background Check Disclosure/Consent Form That Includes a Liability Waiver Violates the FCRA

On Friday, the Ninth Circuit Court of Appeals issued its opinion in Syed v. M-I, LLC, holding, on an issue of first impression, that an employer willfully violated the Fair Credit Reporting Act (“FCRA”) by including a liability waiver on the background check disclosure and consent form it provided to prospective employees. The Ninth Circuit held that the FCRA expressly states that before obtaining a consumer report for employment purposes, an employer must disclose its intent to secure a consumer report for employment purposes and inform the consumer of his/her rights under the FCRA. The FCRA states that this information must be provided in writing in a document “consisting solely of the disclosure.” The FCRA goes on to state that the employer must obtain the consumer’s authorization to procure the report and that the authorization can be on the same document as the disclosure. In this case, the employer had a disclosure and consent form, as required by the FCRA. However, the employer’s form included a provision stating that the applicant signing the form agrees to release the employer from any and all liability stemming from its reliance on information derived from the consumer report. The Ninth Circuit held that the inclusion of this liability waiver on the disclosure and consent form violated the FCRA’s express mandate that the disclosure consist “solely of the disclosure.” The Ninth Circuit reasoned that the inclusion of extraneous information, such as a liability waiver, in the disclosure form violates the law. Worse, the Ninth Circuit held, as a matter of law, that the employer’s violation was both “objectively unreasonable” and “willful” (thereby exposing the employer to statutory and punitive damages), even though this was an issue of first impression that no Circuit Court had before decided. The full text of the Ninth Circuit’s opinion is available here. This case will only serve to promote more FCRA lawsuits against employers. Employers may wish to review their background check disclosure and consent forms to ensure that they do not improperly include “extraneous” information and that they otherwise comply with the FCRA (and California law, as applicable).

California and Criminal Convictions: Employers May Want to Reexamine Their Background Check Policies in Light of Proposed Regulations

In early 2016, the California Fair Employment and Housing Council (FEHC) proposed regulations that are intended to define and clarify how using a person’s criminal history may violate the Fair Employment and Housing Act (FEHA). If adopted, the regulations would create additional avenues for job applicants and employees to sue employers for violations of FEHA. These regulations, coupled with the growing number of local jurisdictions implementing “ban the box” legislation, are yet another reminder that employers may want to proceed with caution when using an employee’s criminal history to make an employment decision.

California Law Restricts Employers From Asking About Juvenile Criminal History

California recently amended its existing law governing inquiries into and the use of juvenile criminal information. Effective January 1, 2017 employers will be restricted from asking about, seeking, or using a California applicant/employee’s juvenile criminal history in the employment context.

The DFEH Modifies Proposed Regulations on Use of Criminal Records For Employment Decisions

On September 7, 2016, the California Department of Fair Employment and Housing (“DFEH”) announced modifications to its proposed regulations originally promulgated on February 19, 2016, governing the use of criminal history in employment decisions. The new regulations are intended to prevent disparate impact discrimination against protected classes such as gender, race, and national origin. If passed, the new modified regulations will impose more restrictions on employers, including a burden shifting test.

New California Law Limits Employers’ Ability To Inquire Into Juvenile Criminal History

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 court disposition” that occurred while the applicant was subject to the “process and jurisdiction” of the juvenile court.

California Amends Labor Code to Prohibit Employers from Using Juvenile Records in Employment Decisions

On September 27, 2016, California Governor Jerry Brown signed Assembly Bill No. 1843, which amends the California Labor Code to prohibit employers from considering certain juvenile records for employment purposes. The amendment is effective January 1, 2017.

California Issues Proposed Regulations Concerning Criminal History Inquiries

California's Fair Employment and Housing Council has issued proposed regulations concerning the use of criminal history information in employment decisions. The proposed regulations set forth pre-existing statutory prohibitions on using or inquiring about the following types of criminal history about an employee or applicant, when making employment decisions such as hiring, promotion, training, discipline, and termination:

State Appellate Court Considers Employer’s Duty to Conduct Criminal Background Checks

In the last few years, there has been a significant spike in the number of lawsuits challenging employer use of criminal background checks, including class action lawsuits brought under the federal Fair Credit Reporting Act.1 There also has been a sharp increase in the number of state and local laws that restrict when employers can ask job applicants to self-disclose their criminal history (so-called “ban the box” laws). Of course, employers also must be mindful of the types of conviction and arrest records that are considered “off limits” at the state and local level.

Constitutional Challenge to California's Background Check Law Rejected

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).

Credit Checks In California Now Tougher Than Ever

Effective January 1, 2012, California employers will have to avoid yet another potential legal hazard that haunts businesses with the threat of costly penalties: the unauthorized use of consumer credit reports regarding job applicants and current employees.
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