No specific law precludes an employer from conducting a consumer background check before making a job offer (this is distinguished from a criminal background check). However, many employers wait to conduct consumer background checks until post-offer/pre-employment.
There are privacy concerns that should always be kept in mind when conducting a background check, regardless of the time. One is the additional layer of privacy offered to Californians by the right of privacy guaranteed to them in the California Constitution. California zealously protects its residents’ privacy. It is considered an invasion of that privacy to dig into someone’s background, but the offer of employment, even if conditional, is considered a reason to do that search.
Additionally, if an employer conducts a pre-offer background check and uncovers certain private information, then makes an adverse decision accordingly, it can be considered a discriminatory action. An applicant’s age, race, religion, etc. can be discovered during such a check, and a claim of discrimination can be made if an adverse decision was made because of such protections.
If the background check identifies issues of concern to you, consider discussing the issues with the candidate as there are some background checks that come back with incorrect information. In today’s world of identity theft, it’s a best practice to give an applicant a chance to explain any problem, whether “pre” or “post” offer.
However you practice, it is important to be consistent in your policies. Random background screening is inadvisable, and can easily lead to a claim of discrimination. When developing your policies, it is best to consult with legal counsel.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
Leave a Reply