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California Court Limits Defenses Available to Employers Requesting Employee Background Checks

By Bryan Hawkins on August 17, 2015
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Background checks can provide California employers with vital information concerning their employees. In order to protect individual privacy rights, however, the California legislature has created two separate laws governing the procedure for such checks: the Investigative Consumer Reporting Agencies Act (“ICRAA”), which generally governs reports concerning “character information,” and the Consumer Credit Reporting Agencies Act (“CCRAA”), which generally governs consumer credit reports. In a 2007 decision, Ortiz v. Lyon Management Group, Inc., the California Court of Appeal determined that the ICRAA was “unconstitutionally vague” if the report in question was arguably governed by both acts. On August 12, 2015, the California Court of Appeal for the Second Appellate District issued its opinion calling that 2007 decision into question.

In Connor v. First Student Inc., the employee alleged that her employer’s background check violated the ICRAA. Based on the Fourth Appellate District’s decision in Ortiz, the lower court dismissed the action after determining that the background report in question was arguably governed by both the ICRAA and the CCRAA. The employee appealed. The Second Appellate District reversed the lower court’s ruling, determining that Ortiz was wrongly decided because there was nothing in either the ICRAA or the CCRAA precluding the application of both acts to reports pertaining to both “character information” and creditworthiness.

With the decision in Connor, California employers must be sure that any background reports they obtain comply with all applicable law, including the ICRAA and the CCRAA as well as the other applicable federal laws and local ordinances. More importantly, and to the extent there was any need, Connor is yet another reminder that California employers must continue to be diligent as they traverse California’s complex legal landscape. Failing to do so risks not only statutory liability but also substantial legal costs.

Photo of Bryan Hawkins Bryan Hawkins

Bryan Hawkins Bryan Hawkins is a litigator practicing in the firm’s Labor & Employment group with extensive jury and bench-trial experience in representing employers in employment-related litigation in court and before administrative agencies such as the Department of Fair Employment and Housing and…

Bryan Hawkins Bryan Hawkins is a litigator practicing in the firm’s Labor & Employment group with extensive jury and bench-trial experience in representing employers in employment-related litigation in court and before administrative agencies such as the Department of Fair Employment and Housing and the Equal Employment Opportunity Commission. His practice also involves counseling employers on employment-related issues, including handbooks and policies. Bryan also provides counseling on labor issues, such as advising employers on how to effectively respond to union organizing campaigns, negotiate collective bargaining agreements, and manage the employer/union relationship. In addition, Bryan’s practice includes litigating complex commercial disputes in areas such as antitrust, business torts, and real estate.

Click here for Bryan Hawkins’ full bio.

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  • Posted in:
    Employment & Labor
  • Blog:
    World of Employment
  • Organization:
    Stoel Rives LLP
  • Article: View Original Source

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