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I run a temporary employment agency...what information re criminal background check should I turn over to clients?

Woodland Hills, CA |

I own a company that provides temporary (contract) computer programming personnel. One of my clients has informed me that they require a criminal background check on all employees (including temps) before they can start work. Here is my question: Once the background check has been completed, what information do I relate to my client? Do I give them an actual copy of the report, or just "certify" that the background check on this individual has been completed? Please note that my client is not proving me with any particular requirements.

Attorney Answers 4

Posted

I would ask the client. However one caveat: unless the employer is in law enforcement or certain government jobs that involve the military or other sensitive jobs, an employer cannot ask about or use arrests as a basis for an employment decision. Convictions yes. Arrests only, no.

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.

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Asker

Posted

Thanks Neil. My question is whether I am required or prohibited by law from turning over the actual report, as opposed to certifying/communicating the results.

Neil Pedersen

Neil Pedersen

Posted

If you do not turn over the entire report, you will be held to have evaluated the information on the report and to have given your approval. To avoid potential liability to the client, it would be best for you to simply procure and forward the report, unless the client requires more of you.

Posted

I would proceed with a great deal of caution in this area without specific legal advice. Given that you are asking this question on a public forum, I would assume that neither you nor your client have an employment attorney to guide you here. That is a mistake. Background checks involving criminal records are highly regulated, and there are a number of specific requirements regarding this type of "investigative consumer report," as it is officially called. The California Investigative Consumer Reporting Agencies Act (Civil Code 1786 et seq.) and the Fair Credit Reporting Act (15 U.S.C. 1681a) contain some of these laws, but their implementation is tricky and require that the potential employee provide a knowing authorization to have this information searched and an opportunity to object to any adverse findings within a reasonable time, among other requirements. If an employment decision is made based on the results of a background check that was not properly conducted, that is a lawsuit waiting to happen.

I don't mean to scare you, but please be careful.

Disclaimer: This reply does not constitute legal advice or the establishment of an attorney-client relationship, and constitutes only general guidance based on the limited information provided, and may not take into account additional relevant facts and circumstances pertaining to your specific situation.

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Posted

Thanks Benjamin. I'm familiar with the requirements of FCRA, as well as "FCRA Plus", authorization and disclosure requirements, etc., and the company I'm dealing with has in-house counsel as well, but as you might imagine they have no interest in providing guidance to a vendor of theirs in legal matters. My question really has to do with whether or not a client can request an actual COPY of the report, or is entitled under law only to some statement or certification regarding its findings.

Benjamin Davidson

Benjamin Davidson

Posted

Thanks for clarifying. I cannot say for certain, but I don't believe that there is any legal distinction between providing them with an actual copy of the report or a "summary" of the findings of the report. In either case, an adverse action would have been taken based on the report itself. I would suggest that the safest approach would be to simply screen out any candidates for temp work so that the company need only consider candidates who have already passed the background check. Then they can select between pre-screened candidates. To the extent that the company would like to know what is in the report, you must make sure that the authorization signed by the candidate specifically advises them that the prospective employer may have access to information contained in the report.

Posted

The Privacy Rights Clearinghouse provides a useful fact sheet on this topic.

https://www.privacyrights.org/fs/fs16a-califbck.htm

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Posted

The employees are yours. So you need to comply with the state and federal Fair Credit Reporting Acts. If you don't, you could incur liability. Also, if you give clients too much information, and they wrongfully discriminate, you could be on the hook as well.
I am not only a lawyer, but I own a company that performs background checks. Most background check companies do it wrong and jeopardize their clients. You need to get a background check company that won't jeopardize you or your client.

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