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Investigating Job Applicants

investigating job applicants.jpgCalifornia businesses have a lot to consider when investigating or screening potential employees. There are many gray areas without crystal clear guidance from the law. However, the law does provide some general principles which will keep you safe. Therefore, the wisest approach is to let an attorney assist you in setting a company-wide policy that follows these general principles.

Internet Footprint Searches

Here are some best practices if you search your job applicants online before offering them a position.

  • Ensure that your hiring pattern does not indicate that you are being influenced by traits that are protected from discrimination like religion, politics, marital status, lawful off-duty conduct, disability, etc.;
  • Develop a standard search procedure and run the same search for each applicant type;
  • Set up a non-communication protocol between those conducting the searches and those making the hiring decision so that the decision maker is not unduly influenced by inappropriate information;
  • Obtain consent from all job applicants. An easy way to do this is to have them sign (or check-mark) an acknowledgement statement that Internet searches will be a part of the decision process;
  • Consider asking the applicant about any adverse information you glean from an Internet search before you rule out the applicant as a candidate; and
  • Do not use pretext to conduct your search. For example, don't "friend" an applicant on Facebook under false pretenses.

California Investigative Consumer Reports

California's job applicants have greater protections against background checks than citizens generally have under the federal law. This, of course, makes things more difficult for multi-state employers because you have to set up different processes for California job applicants. In California, a background check in the context of employment decisions is called an "investigative consumer report" (ICR).

California's definition of an investigative consumer report is broader than the federal definition. Under the federal Fair Credit Reporting Act (FCRA), an "investigative consumer report" is limited to personal interviews with your friends, neighbors or business associates. In California, it includes your "character, general reputation, personal characteristics, or mode of living" obtained through "any means." Under no circumstances does an ICR include credit reports, which are regulated separately.

If you make inquiries into a California job applicant's character, reputation, or mode of living, you must send to the job applicant a notice that states the purpose of the ICR, gives all contact information for the investigating firm, and summarizes the applicant's rights to see and copy his or her report, and it must include a check box to indicate whether the applicant wants a copy of the report.

Although you are not required to say this in the notice, the applicants actually have the right to visually inspect all files maintained by the investigative firm regarding the job applicant. You are allowed to keep your sources secret as long as they are not public records; however, if the applicant takes adverse legal actions against you, your sources may be revealed during discovery.

These requirements apply even if you are only internally gathering data about the applicant from public records.

Let Our Attorneys Help You

Do not hesitate to call our skilled San Jose employment lawyers at (408) 971-6270, who can help you set a company policy that will protect you from adverse actions. We serve many areas, including Santa Clara, Campbell, Los Gatos, and New Almaden.



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