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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34404
Experience:  Retired (mostly)
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CA - 3rd party background check co. disclosed conviction

Resolved Question:

I'm in CA. A 3rd party background check company disclosed an 8 year old expunged DUI Misdemeanor to my employer prior to me being employed. Although it did not result in any adverse action, it is a clear violation of my privacy and CA civil code 1786. I'd like a legal opinion on this. They ran a driving record (eg - the "criminal record" shows up clean but the "driving record" shows the misdemeanor DUI). Nevertheless, the disclosure was part of the full report. Is a driving record a loophole or are they in violation? (A driving record in CA can keep DUIs up to 10 years on record).
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Hello,

Your question has been hanging around for a while. If you still need an answer, please let me know and I will try to assist.

Thanks.
Customer: replied 3 years ago.
I do still need an answer....it seems like nobody knows and this is some type of "grey area" because the driving record pulls up an expunged criminal charge (eg - the direct inquies into criminal history show nothing but the driving record shows the criminal charge)
Expert:  socrateaser replied 3 years ago.
Vehicle Code 1808 permits public disclosure of DUI convictions for noncommercial drivers for up to 10 years.

Civil Code 1786.12(d)(1) permits a "invesigative consumer reporting agency" to prepare an investigative report for employment purposes, if the employer provides a certification to the reporting agency pursuant to Civil Code 1786.16(a)(4), that the employer has complied with all of the provisions of Civil Code 1786.12(a)(2), as follows:

  • If, at any time, an investigative consumer report is sought for employment purposes other than suspicion of wrongdoing or misconduct by the subject of the investigation, the person seeking the investigative consumer report may procure the report, or cause the report to be made, only if all of the following apply:
  • (A) The person procuring or causing the report to be made has a permissible purpose, as defined in Section 1786.12.
  • (B) The person procuring or causing the report to be made provides a clear and conspicuous disclosure in writing to the consumer at any time before the report is procured or caused to be made in a document that consists solely of the disclosure, that:
  • (i) An investigative consumer report may be obtained.
  • (ii) The permissible purpose of the report is identified.
  • (iii) The disclosure may include information on the consumer's character, general reputation, personal characteristics, and mode of living.
  • (iv) Identifies the name, address, and telephone number of the investigative consumer reporting agency conducting the investigation.
  • (v) Notifies the consumer in writing of the nature and scope of the investigation requested, including a summary of the provisions of Section 1786.22.
  • (vi) Notifies the consumer of the Internet Web site address of the investigative consumer reporting agency identified in clause (iv), or, if the agency has no Internet Web site address, the telephone number of the agency, where the consumer may find information about the investigative reporting agency's privacy practices, including whether the consumer's personal information will be sent outside the United States or its territories and information that complies with subdivision (d) of Section 1786.20. This clause shall become operative on January 1, 2012.
  • (C) The consumer has authorized in writing the procurement of the report.

Now that you have a straightfoward description of how the law works, you can apply your circumstances to the law. If you see a violation, then you have the remedies available found in Civil Code 1786.50-.60

Note: the employer has a "loophole in the law, which is the size of the Grand Canyon, in my opinion. That is. if the employer suspects you of having engaged in some sort of wrongdoing or misconduct in connection with your employment, then it can simply request the report, without any notice to you, whatsoever. The employer would have to prove some objective proof that it had this sort of reasonable suspicion -- but if it can do this, then you cannot maintain a legal action against the employer or the investigative reporting agency.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!


Customer: replied 3 years ago.
Vehicle Code 1808 says 10 years, but CA Civil Code 1786.18 says 7 years -

So which law is prevelant here is my question?




CA Civil Code 1786.18. (a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information: (7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.
Expert:  socrateaser replied 3 years ago.
The Vehicle Code section provides for how long the DMV must disclose the info. The Civil Code provides for how far back the investigative reporting agency is permitted to disclose the information. So, for purposes of holding the investigative agency liable for unauthorized disclosure, seven years would be the maximum time period.

Hope this helps.


And, if you need to contact me again, please put my user id on the title line of your question (“ToCustomerrdquo;), and the system will send me an alert. Thanks!

socrateaser, Lawyer
Satisfied Customers: 34404
Experience: Retired (mostly)
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