74 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com since the employer’s due diligence in asking the plaintiff about his criminal record served to verify that the background “information was accurate and not the result of identity theft or otherwise erroneous.”116 The employer must also provide a copy of all public records obtained even if no adverse action occurs, upon “completion” of the investigation, unless the individual has checked a box, on a written form, to waive the right to receive a copy of the public records.117 Criminal history information. Litigants have disputed whether criminal history information is “character” information governed by ICRAA or “creditworthiness” information governed by CCRAA. In 2012, a California federal district court held that ICRAA is unconstitutionally vague as applied to background reports containing criminal history information. The federal court, reviewing the two statutes and their legislative history, concluded that an item of information can be subject to either ICRAA or CCRAA, but not both. The criminal history information at issue in the case pertained to both the plaintiff’s character and creditworthiness. The federal court held that because there was no rational basis to decide that the information should be governed by one statute versus the other, ICRAA was unconstitutionally vague in that situation and so the federal court dismissed the ICRAA claim.118 But the California Supreme Court has since held that ICRAA is not unconstitutionally vague and that employers can comply with both statutes simultaneously.119 4.12 Psychological Tests California prohibits pre-employment or employment-related psychological tests except in extremely limited circumstances.120 California applicants have successfully challenged, as an unlawful invasion of privacy, psychological tests (such as the MMPI—the Minnesota Multiphasic Personality Inventory) that require them to answer questions about their religious beliefs and sexual orientation, even though the test answers were used by only the professional administrators of the test and not by the employer itself.121 Pre-employment psychological examinations are forbidden just as pre-employment medical examinations are (see § 6.3.2). 4.13 Fingerprinting Absent an exception, California employers must not fingerprint employees to provide information to a third person who could use the information against the employee.122 4.14 Photographing California employers must not photograph employees to provide information to a third person who could use the information against the employee.123 If an employee photograph is required, then the employer must pay the cost.124 4.15 Subcutaneous Identification Devices Subverting the aspirations of intrusive employers (as well as certain concerned parents of wayward teenagers), the California Freedom from Subcutaneous Identification Device Act (our unofficial title only) forbids any person from requiring any individual to undergo the subcutaneous implanting of an identification device.125 An identification device is anything that can transmit personal information, such as a person’s name, address, telephone number, email address, date of birth, driver’s license number, religion, ethnicity or nationality, photographic, social security number, bank or credit card account number, etc.126
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