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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12942
Experience:  Significant experience in all areas of employment law.
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Our company would like to perform background checks on all

Customer Question

Our company would like to perform background checks on all employees. We did not do this when they were hired, and we have not gotten consent to do it in their employment agreements. But we would like to do it on all existing employees. CA couple questions:
First, do we need to get consent? Second, what if they don't give consent? Is their refusal to give consent grounds for firing them in CA (since it is an at-will state)? Should we identify up front which issues are grounds for termination if we discover them
in background checks? Or can we make that determination on a case-by-case basis? Thanks.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

An employer does not need consent to conduct background checks unless it hires a third party background check service to perform the background checks. In that case, the Fair Credit Reporting Act does require employers to get consent, to disclose a copy of the report to the employee, and to specify what information contained in a report is a basis for adverse employment action if adverse employment action is taken based on the contents of the report. See here for more information.

If the employer is conducting the background check on their own, the requirements of the FCRA do not apply. Employers are simply restricted from inquiring about arrests that did not result in conviction, , convictions more than 7 years old, or any criminal record that has been expunged, sealed or dismissed. Credit checks are the one exception. Those always, require employee consent, and in fact the law in CA actually prohibits credit checks except for certain kinds of employees. See here for more information.

As for telling employees what will be grounds for termination, there is no need to state this up front, and in fact doing so can restrict your ability to use discretion. It is best to decide things on a case by case basis.

Lastly, if an employee refuses to consent to a background check, that is grounds for termination in an at will employment state. In other words, while the employee has a right to refuse a commercial background check, an employer is not forced to keep that person employed. Refusing a background check is a huge red flag and a perfectly reasonable reason to let someone go.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Customer: replied 1 year ago.
Thanks. We would be using Zenefits (an online benefits processing company) to run the background checks. I assume that would fall under the "hiring a third party"? Thanks!
Expert:  Patrick, Esq. replied 1 year ago.

Yes, that would fall under hiring a third party. You would need to literally be checking court records yourself and calling former employers yourself for it not to be considered a third party background check. I hope this helps.

Again, please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Very best wishes.