In the modern hiring process, background checks have become a critical component for employers to assess job applicants. These checks help employers make informed decisions by providing insights into an applicant’s past behaviors and qualifications. However, a critical question arises: Can an employer run a background check without permission? This article delves into this topic, shedding light on your rights under California and federal laws, what information is typically included in a background check, and the legal actions you can take if an employer runs a background check without your consent.
What is a Background Check?
A background check is a review of a person’s financial, criminal, and commercial records. Employers use background checks to verify the accuracy of a job applicant’s resume, assess their criminal history, check their credit report, and confirm their employment history. The goal is to ensure that the candidate is suitable for the position and to mitigate potential risks associated with hiring.
Common Elements in a Background Check
Criminal Records: Information about any past criminal convictions or arrests.
Credit Report: A summary of a person’s financial behavior, including credit score and debt history.
Employment History: Verification of previous job positions, dates of employment, and reasons for leaving.
Education Records: Confirmation of academic credentials and degrees.
Public Records: Data from court records, such as bankruptcy filings and civil suits.
Legal Framework for Background Checks
Federal Laws: The Fair Credit Reporting Act (FCRA)
The Fair Credit Reporting Act (FCRA) governs the collection, dissemination, and use of consumer information, including background checks. Under the FCRA, employers must:
Obtain written permission from the applicant before conducting a background check.
Inform the applicant if the background check results will impact their employment prospects.
Provide a copy of the background report and a summary of rights if adverse action is taken based on the report.
California State Laws
California has additional regulations that offer more stringent protections compared to federal laws:
California Investigative Consumer Reporting Agencies Act (ICRAA): Requires employers to obtain written permission before conducting a background check and to provide clear disclosures about the purpose and scope of the check.
California Consumer Credit Reporting Agencies Act (CCRAA): Restricts employers from obtaining credit reports for employment purposes, except in specific circumstances, such as managerial positions or jobs in the financial sector.
California Fair Chance Act: Limits when employers can ask about criminal history during the hiring process, typically only after a conditional job offer has been made.
When Can an Employer Run a Background Check Without Permission?
There are rare instances when an employer might run a background check without explicit permission:
Public Safety Positions: For roles involving public safety or national security, certain background checks may be mandated by federal or state laws, allowing limited scope checks without explicit permission.
Existing Employees: Employers may sometimes conduct background checks on current employees without fresh consent if there’s a reasonable suspicion of misconduct or if stipulated in the employment contract or background reporting company policy.
Exceptions and Restrictions
Even in these cases, employers must ensure compliance with relevant laws and respect the employee’s privacy rights. Any misuse or overreach can lead to legal ramifications.
When Employers Cannot Run a Background Check Without Permission
In most hiring scenarios, employers cannot conduct a background check without the applicant’s permission. This includes pre-employment background checks and checks conducted at any stage of the hiring process. Employers must:
Provide a clear disclosure about the background check.
Obtain written consent from the applicant.
Notify the applicant if the information obtained will negatively affect their employment prospects.
Privacy Protections
California laws provide robust privacy protections, emphasizing the importance of consent and transparency. Employers are prohibited from:
Conducting background checks based on an applicant’s national origin, family medical history, or social security records without consent.
Accessing certain criminal records, such as sealed or expunged records, without explicit permission.
What Should You Do if an Employer Runs a Background Check Without Your Permission?
If you discover that an employer has conducted a background check without your consent, you have several options:
Request Information: Contact the employer and request a copy of the background report and the reason for conducting the check without your permission.
File a Complaint: Report the incident to the Federal Trade Commission (FTC) or the Consumer Financial Protection Bureau (CFPB). These agencies enforce compliance with the FCRA.
Consult an Attorney: Seek legal advice from an attorney specializing in employment law to understand your rights and potential remedies.
Potential Legal Actions
You may be entitled to take legal action if your rights under the FCRA or California laws are violated. Potential claims include:
Invasion of Privacy: If an employer accessed your personal information without consent, you could sue for invasion of privacy.
Violation of FCRA: You may seek statutory damages, attorney fees, and other relief if an employer violated the FCRA requirements.
Unlawful Employment Practices: Claims under state laws for any adverse actions taken based on unauthorized background checks.
Can a Job Hire You Then Fire You Because of Your Background?
Employers often make conditional job offers contingent on passing a background check. If the background check reveals information that impacts their decision, they can legally rescind the job offer. However, they must:
Provide you with a copy of the background reports.
Give you a reasonable period to dispute the accuracy of the report or explain any adverse information.
Employment Termination
Once employed, firing an employee based on background information obtained without permission could constitute wrongful termination, especially if it violates state or federal laws. Employees have the right to challenge such termination in court.
Taking Legal Action
Steps to Initiate a Legal Claim
If you believe your rights were violated due to unauthorized background checks, you can take the following steps:
Gather Evidence: Collect all relevant documents, including communication with the employer, the background report, and any notices received.
Consult Legal Counsel: An attorney can help evaluate the strength of your case and guide you through the process of filing a lawsuit.
File a Complaint: Depending on the nature of the violation, you can file a complaint with relevant agencies or directly pursue litigation.
Possible Outcomes
Legal actions can lead to various outcomes, including:
Damages: Compensation for any harm suffered due to the unauthorized background check.
Injunctions: Court orders preventing the employer from using the unauthorized information.
Reinstatement: If wrongfully terminated, you might be entitled to reinstatement in your job or compensation for lost wages.
How an Attorney Can Help You if an Employer Runs a Background Check Without Permission
If you find yourself in a situation where an employer has run a background check without your permission, consulting with an attorney can be a crucial step in protecting your rights and seeking justice. Here are the ways an attorney can assist you in such a case:
Legal Advice and Evaluation: Attorneys offer guidance on your legal rights and assess if the employer’s actions violated laws like the FCRA or state-specific regulations.
Investigation: They conduct thorough inquiries, gathering evidence and documents to strengthen your case and uncover any potential violations.
Documenting Violations: Attorneys help maintain detailed records of communication with the employer and any discrepancies in background check procedures.
Filing Complaints: They assist in submitting formal complaints to regulatory bodies like the FTC or CFPB, initiating investigations into the employer’s actions.
Negotiating Settlements: Attorneys negotiate with the employer to reach fair settlements, seeking compensation for damages suffered due to the unauthorized background check.
Filing a Lawsuit: If negotiations fail, attorneys file lawsuits on your behalf, advocating for your rights in court.
Seeking Damages: They pursue various types of damages, including compensatory, punitive, and statutory damages, along with attorney fees.
Ensuring Compliance: Attorneys ensure the employer adheres to legal requirements for future background checks and employment practices.
Protecting Against Retaliation: They safeguard against employer retaliation, taking legal action if necessary.
Advising on Employment Law: Attorneys provide ongoing advice on employment law matters beyond the immediate case.
Need Legal Help with Unauthorized Background Checks? Contact BLG Today!
In summary, employers in California must obtain your permission before running a background check. This requirement is grounded in both federal and state laws designed to protect your privacy and ensure fair employment practices. If you discover that an employer has conducted a background check without your consent, you have several avenues to challenge this action and seek redress.
Understanding your rights and the legal framework surrounding background checks can empower you to take appropriate action if you face any violations. Whether you are a job applicant or an existing employee, knowing how to protect your personal information is crucial in today’s employment landscape.
If you suspect your privacy rights have been violated or need guidance through the legal process, BLG is here to help. Our experienced attorneys specialize in employment law and are dedicated to defending your rights.
Contact our law firm for a free consultation.
FAQs
What is the background check law?
Background check laws vary by jurisdiction, but they generally regulate how employers can conduct and use background checks during the hiring process. These laws often require employers to obtain consent from candidates, inform them of their rights, and follow specific procedures if they decide not to hire based on the results. In the U.S., the Fair Credit Reporting Act (FCRA) and various state laws govern these practices.
Can a job hire you then fire you because of your background?
Yes, depending on the laws in your location and the nature of the background issue. If the background check reveals information relevant to the job (e.g., criminal record for a position involving security), an employer might choose not to hire or, if already hired, terminate based on that information.
Can HR share background check with hiring manager?
Yes, HR can share the results of a background check with the hiring manager, typically in accordance with company policies and data protection regulations. This sharing is usually done to make informed hiring decisions.
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