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What is the legalistically to adding the background check to an application

Yorba Linda, CA |

Is it legal to require a subject to a background check in the application process

Attorney Answers 5

Posted

Employers have the right conduct background checks and the permissible scope of inquiry is broad. The restrictions, which are few and far between, include inquiries into applicants' medical history, sexual orientation, religious affiliation, and in some instances credit history. Almost everything else is fair game, including contacting former employers and searching criminal records. I hope this helps.

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

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Posted

what about D.O.B?

Patrick John Phillips

Patrick John Phillips

Posted

There is no law that prohibits an employer from requesting your DOB. Of course, such information can be used to discriminate on the basis of age if you are over 40, but simply because that is a possibility does not make the request itself illegal. There are legitimate reasons for wanting to know your DOB (i.e. ensuring the accuracy of the records pulled in your background check) separate and apart from weeding out "old" employees.

Posted

Completely legal.

Law Offices of Hasbini 619-200.8986. Free on phone and in office consultation. http://www.sandiegoemploymentlawyer.net

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Posted

An employer who does not engage in a background check of a possible new employee is a fool. Of course it is legal. There are limits that an employer has on what it can look for as suggested by my colleague. However, you should expect that almost every employer will do a background check on you, even if they do not disclose that they are doing so.

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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Posted

It is legal, but in addition to the restrictions my colleagues have pointed out, there are additional requirements when the employer uses an outside agency. The Fair Credit Reporting Act and the Investigative Consumer Reporting Agencies Act both contain detailed requirements for what an employer must do in order to obtain a background check, and what disclosures it must make if it takes an adverse action against an employee or an applicant because of the results of the background check.

I hope this information is helpful to you.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Craig Trent Byrnes

Craig Trent Byrnes

Posted

I've read Ms. McCall's response, and I must respectfully disagree. The FCRA and ICRA are quite clear on what constitutes a background check, and the laws are well-written and easily understandable.

Posted

Employers are permitted by law to do "background checks" on applicants for employment. Background checks are becoming increasingly common in advance of promotion of current employees, too.

The laws are very unsatisfactory and unhelpful in defining "background checks," and the statutory language of potentially applicable statutes can make applying the laws in this subject matter unpredictable, inconsistent, and unreliable -- even with the assistance of experienced counsel.

Most California employers follow guidelines published and promulgated by large international and national professional associations such as Employers Group. It can be important to understand the accepted practices of major employers both for predicting employer conduct and for estimating the scope and depth of legal push-back that can be expected to occur if an unorthodox or inconsistent legal position is advanced.

In particular, California's laws on employee background checks are a skein of half-a**ed provisions that are inadequate as disincentives for aggressive employers and as remedies for aggrieved employees. Legislative reform is long overdue and sorely needed. Many employment applicants have been led down the garden path by statutory language which provides for rights and remedies for "investigative consumer reports" which are not the same as employment background checks. Employment applicants also often overlook the fact that laws and prohibitions re "background checks" seldom apply to constrain or force the selection processes of an employer who learns information from a public record (of conviction, arrest, or anything else) or has knowledge of the applicant or the applicant's history through news reports, employee gossip, etc.

It can also be important to remember that an employer is not ordinarily required to state a reason for declining to make an offer of employment to any applicant, and if a voluntary statement is made, it need not be true or complete.

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