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Does a company that ran a background check on me have a ritgh to withhold where they obtained their information?

San Francisco, CA |

I applied for a company as an indepent contractor/errand runner. They asked if they can run a
background check, a few weeks later they replied saying they could not offer me a position. I asked them to send me a copy of whatever report they used in order to come to that conclusion and they have yet to respond. Can they legally withhold the info that determined the outcome?

Attorney Answers 3

  1. I don't think so. I think you are correct. The California Fair Credit Reporting Act 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 the FCRA omits.

    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.

    David mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

  2. The employer's obligation to justify its decision to not hire you if very limited. In your case, you were apparently not even going to be an employee, just an independent contractor. The employer/contracting entity need not have a reason why it determined to not hire you. Furthermore it is possible its decision did not involve any documents, but was based on many other possible reasons. As such, I would not hold your breath. As a final note, even if there is a legal obligation to provide some documentation that was referenced, the question you need to ask is whether it is work a boat load of your money to get those documents through legal process.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

  3. California's laws about "background checks" can be very confusing to consumers and difficult even for employers to apply correctly. Employment applicants often believe that the limitations in CA Civil Code § 1786.18 apply, but this is often an incorrect assumption. §1786.2 specifically defines "investigative consumer reports" as reports in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained... " In most cases, a pre-employment background check -- even an expensive and comprehensive one -- will not meet this definition and will not be limited by §1786.18. The practical bottom line is that it is never unlawful for the employer or the employer's agent to access public records, although there are some legal limitations on what the employer can do with the information from those records. This "gap," in the legislation leaves the consumer without meaningful enforcement powers in many instances. Even plain violations of the statutory prohibitions in this subject matter are rarely visible to the affected applicant.

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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