As a business owner, it seems to make good sense to require individuals to undergo a background check before hiring them as employees. However, there are many federal and California state laws that potentially apply to the background check prospective for prospective employees. While background checks prior to hiring definitely can give employers an advantage in making hiring decisions, employers must take care to avoid running afoul of the law and creating any appearance of impropriety or discrimination.
Above all, you must get the written consent of the individual to perform the background check before doing it. You also have to limit your background check to information that relates to the position for which you are hiring. The prospective employee must receive a separate written notice covering the exact nature and scope of the background check that you intend to perform. Permissible areas of inquiry include references from former employers, colleagues, neighbors, and friends about the individual’s character and general reputation. You also can consider any criminal records, education records, DMV records, workers’ compensation records, and medical history, but only to the extent to assess the individual’s ability to do a particular job. As a general rule, you cannot obtain an individual’s credit report, except in some very limited circumstances.
In order to help avoid the significant problems that can arise when an employer uses background checks in hiring decisions, you can take a few simple steps. First, treat every prospective employee exactly the same. If you require one individual to undergo a background check, then you must require everyone to undergo a background check. Otherwise, you risk violating state and federal discrimination laws. If you choose to use a third-party vendor in order to conduct the background checks, then you must ensure that they comply with all applicable laws and provide certain notices to the third-party vendor. Even if you choose to conduct the background checks in-house, you have an affirmative duty to produce a copy of the public records used to the individual within seven days of receiving them.
Throughout the course of your business operations, Heit Law Group, P.C., is here to educate you about the employment law-related matters that you are likely to encounter as a business owner, which can allow you to avoid some of the issues that commonly arise between employer and employee. However, if you become involved in an employment law dispute, we will be there to represent your interests and fight for your rights, regardless of the circumstances. Our job is to support your business and ensure that you are complying with all federal and state laws. Contact your California business lawyer and find out how we can help you with all of your business-related legal needs.