Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 73  that the report may include information on the individual’s character, general reputation, personal characteristics, and mode of living (as the FCRA requires),  the nature and scope of the investigation requested (which the FCRA requires only if the individual asks),  the name, address, telephone number, and website of the investigative consumer reporting agency that will conduct the investigation (the website information is beyond what the FCRA requires) , 77  that the investigative consumer reporting agency will, on reasonable notice, permit the individual to inspect the agency’s files for information on the individual (beyond what the FCRA requires),  that the individual may obtain a copy of the file, by paying the actual cost of duplication (beyond what the FCRA requires), and  that the individual may obtain a summary of the file information by telephone, with proper identification (beyond what the FCRA requires) . 78 In a 2019 case, the Ninth Circuit, interpreting both FCRA and ICRAA, held that an employer’s disclosure form for job applicants did not comply with the stand-alone-document requirement, because it contained extraneous state disclosure requirements and was not clear and conspicuou s. 79 Moreover, there are California-specific limits on what may be reported by a background screening company. For example, under the FCRA, there is no longer any time limit affecting the search for records of criminal convictions for applicants making $75,000 or more . 80 I n California it’s different. A California report generally must not contain reports of convictions that precede the report by more than seven years, regardless of an applicant’s contemplated salary . 81 On-line child care job posting. California has enacted extra requirements for on-line child care job posting services (including unlicensed childcare providers) and the background check service providers that service those companie s. 82 Unlike the rules outlined above, which focused on the subject of the background screening, this new requirement focuses on informing parents of the availability of background screens. Childcare services providers’ websites must now include a notice informing parents how to access free background screen information and a description of the types of background screens available from their website . 83 Background check services providers have more extensive notice requirements, including a detailed description of what is included in the background check and a chart listing the databases searched, the sources of the data, date ranges, information on the frequency with which the information is updated, a description explaining how the databases are checked, and a list of counties for which no data were available . 84 Investigations into suspicions of wrongdoing. The ICRAA notice, authorization, and disclosure requirements do not apply if an investigative consumer reporting agency is used to investigate suspicions of wrongdoing or misconduc t 85 ( although certain adverse action requirements in the FCRA and ICRAA do apply). Employer-generated reports. While the FCRA applies only if the employer uses a consumer reporting agency, ICRAA applies to an employer’s own investigative efforts to the extent that they involve obtaining certain public records without the use of a consumer reporting agency. Public records include records of arrest, indictment, conviction, civil judicial action, tax lien, and outstanding judgmen t. 86 If a California employer takes adverse action as a result of receiving such a public record, then the employee has an unwaivable right to receive a copy of the recor d. 87