©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 73 that the individual may obtain a summary of the file information by telephone, with proper identification (beyond what the FCRA requires).104 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 conspicuous.105 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.106 In 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.107 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 companies.108 Unlike the rules outlined above, which focus 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.109 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.110 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 misconduct111 (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 liens, and outstanding judgments.112 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 record.113 The first ICRAA appellate case, decided in 2005, involved an employer who had fired the plaintiff when he confessed that he had a felony conviction. The employer induced that confession by interrogating the plaintiff after obtaining an internet copy of a judicial decision mentioning his felony.114 Eight business days after the interrogation, the employer gave the plaintiff the internet copy. The plaintiff then sued for untimely disclosure, seeking the minimum $10,000 penalty for an ICRAA violation. The Court of Appeal made two holdings of interest: (1) the employer could not avoid ICRAA disclosure requirements by arguing that its dismissal of the plaintiff resulted from his admission to a felony conviction instead of the employer’s receipt of the internet report; the Court of Appeal aggressively read the ICRAA to say that the employer must disclose a copy of the public record if an adverse action was taken under circumstances in which the record was obtained, and (2) no specific deadline applies to the required disclosure; rather, the employer must furnish a copy “of any public record uncovered in a background check within a reasonable time after an investigation concludes.”115 Here, the Court of Appeal held, as a matter of law, that eight business days following the plaintiff’s interrogation was a reasonable time in which to furnish a copy of the relevant documents, especially
RkJQdWJsaXNoZXIy OTkwMTQ4