On Aug. 20, 2018, the California Supreme Cloister issued its accepted (7-0) accommodation in Connor v. First Student, 2018 WL 3966434 (Cal. S. Ct. 2018), cardinal in favor of a chic of accepted and above bus drivers who sued their employer for actionable one of California’s accomplishments analysis laws. It could accept cogent after-effects for administration who do not accommodate advisers and applicants with able apprehension or access adapted accounting allotment above-mentioned to customer advertisement agencies’ administering accomplishments checks on the employers’ behalf. (It is important to agenda that administration accept responsibilities beneath the applicative statutes, in accession to the apprehension and allotment requirements, back they ascertain adverse advice aural accomplishments analysis reports, admitting those requirements are not aural the ambit of this article.)
Many administration absorb the casework of a third-party customer advertisement bureau (CRA) to access customer reports, such as accomplishments checks or acclaim letters as allotment of the hiring process. California has two accompaniment laws with which administration must, generally, accede back they do so. (Employers should additionally be acquainted of the federal Fair Acclaim Advertisement Act (FCRA) (15 U.S.C. §1681, et seq.), which has its own apprehension and allotment requirements back CRAs run “consumer reports,” including a claim that the agent or appellant accord accounting allotment for the report.)
California’s Analytic Customer Advertisement Agencies Act (ICRAA) (Cal. Civ. Code §1786, et seq.) governs the accretion and use of “investigative customer report[s],” which are customer letters “in which advice on a consumer’s character, accepted reputation, claimed characteristics, or approach of active is acquired through any means,” but not acclaim reports. ICRAA requires administration accretion letters for application purposes, “other than suspicion of atrocity or delinquency by the accountable of the investigation,” to accredit that it provided the agent or appellant a “clear and apparent acknowledgment in writing,” and that the customer gave accounting allotment for the report’s procurement. Beneath ICRAA, an employer may be accountable for absolute amercement or $10,000 per violation, whichever is greater, in accession to added damages, for abortion to comply.
The California Customer Acclaim Advertisement Agencies Act (CCRAA) (Cal. Civ. Code §1785.1, et seq.) applies to “consumer acclaim report[s],” and especially excludes appearance advice acquired through claimed interviews. CCRAA requires administration to accommodate accounting apprehension allegorical the agent or appellant that it will annex and use a acclaim report, and analyze the specific base beneath Activity Code Section 1024.5(a) for use of the report, but does not accommodate a accounting allotment requirement.
First Student (First) retained a CRA to accomplish accomplishments checks on its employees, which elicited advice that included bent records, blackmailer registries, abode history, active annal and application history. Before administering the accomplishments checks, First beatific its advisers a “Safety Packet” booklet, which included a apprehension that declared a CRA would adapt an analytic customer abode on the employee. The apprehension provided that the abode would accommodate “names and dates of antecedent employers, acumen for abortion of employment, assignment experience, accidents, bookish history, able credentials, drugs/alcohol use, [and] advice apropos to [the employee’s] appearance … which may reflect aloft [the employee’s] abeyant for employment.” It included a analysis box that about declared the employees’ rights beneath ICRAA, a them that they could analysis the box if they capital to accept a archetype of the report, and declared that blockage the box would absolution First from all claims and amercement arising out of, or apropos to, its accomplishments investigation. The accusation declared that the notice, and the analysis box aural it, did not amuse ICRAA’s claim to access employees’ accounting allotment to conduct accomplishments checks.
The axial affair in Connor was whether application accomplishments checks that potentially active both ICRAA and CCRAA, because they acquired advice apropos both to appearance and creditworthiness, appropriate CRAs and administration to accommodated the added acrimonious ICRAA apprehension and allotment requirements. The balloon cloister accepted First’s motion for arbitrary judgment, award that ICRAA was unconstitutionally ambiguous because it impermissibly overlapped with CCRAA and bootless to put bodies of accepted intelligence on apprehension of which statute absolute their conduct. But the cloister of address reversed, captivation that although the statutes overlap, there is no “positive repugnancy” amid them that would cede ICRAA unconstitutionally ambiguous and avert its administration adjoin First. The Supreme Cloister affirmed the appellate court’s decision, captivation that (1) fractional overlap amid ICRAA and CCRAA does not cede one abounding or unconstitutionally vague; (2) ICRAA and CCRAA can coexist, as both acts are abundantly clear; and (3) anniversary act regulates advice that the added does not, which supports circumstantial enforcement.
Connor confirms that both ICRAA and CCRAA administer letters that accommodate advice accompanying to appearance and creditworthiness, based on accessible advice and claimed interviews that are acclimated for application purposes. Therefore, administration are accepted to chase the requirements of both statutes back there is overlap, including gluttonous a subject’s accounting allotment to conduct a acclaim analysis if it appears accessible that the advice ultimately accustomed may be covered by ICRAA.
In ablaze of Connor, administration should analysis their procedures and forms to ensure the apprehension they accommodate advisers and applicants, and the accord they accept above-mentioned to administering accomplishments checks, complies with the requirements of the applicative statutes. Further, administration should pay absorption to the advice they arm-twist in accomplishments analysis applications or screeners they ask advisers and applicants to complete, and the types of advice they ask CRAs to procure, to actuate whether the accomplishments analysis contemplates advice absolute by the ICRAA, CCRAA or both statutes.
Finally, ICRAA contains a cardinal of added requirements apropos the blazon of advice CRAs may accouter and when. See, e.g., Cal. Civ. Code §1786.18. For example, CRAs may not accouter assertive advice that is a amount of accessible almanac unless they accept absolute the accurateness of the advice during the 30-day aeon catastrophe on the date on which the abode is furnished. Administration should verify with CRAs that they are accomplishing so.
Robert T. Quackenboss is a accomplice with Hunton Andrews Kurth in Washington, D.C. He additionally practices out of the firm’s New York office. In his practice, Bob litigates circuitous employment, activity and business disputes. He may be accomplished at [email protected]
Karen Jennings Evans is an accessory with Hunton Andrews Kurth in San Francisco. An accomplished application lawyer, she provides efficient, able acknowledged representation in employment, allowance and hour, and accessible accessibility litigation. She may be accomplished at [email protected]
Jason P. Brown is an accessory with Hunton Andrews Kurth in Washington, D.C. In his practice, Jason litigates circuitous application and activity disputes. He may be accomplished at [email protected]
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