Fingerprint Checks and Reference Checks in California

Yesterday, we got some insights on background checks from Jared Callahan, a licensed private investigator and the director of client services for Employment Screening Resources (ESR) in Novato. Today, his thoughts on two more common “checks”: fingerprint checks and reference checks.

Q. We’re trying to set up our policy for doing reference checks on final applicants. Can you help us with some basic guidelines? What if the former employers won’t talk? 

A. Although it’s a good idea to have a policy concerning reference checks, be aware that many employers are wary of giving them. A suggestion is to change the wording to “past employment verifications.”

If you ask for dates of employment and titles held, you will usually get that information. But you may not be able to get further information about performance or behavior.

Even if you don’t get this information, in documenting that you at least attempted the reference check, you can argue that you have demonstrated due diligence.

The best bet for getting a past employer to open up and talk is to send the past employer a release form signed by your candidate releasing the former employer of any liability for answering your questions truthfully.

Don’t miss Callahan’s exclusive CER webinar this Thursday, all about the background check rules and best practices for California employers. Learn more here.

Q. We fingerprint employees and run a background check if they are going to be working with or near children. (We do it for current employees if they are transferring to such a job.) Are we required to provide these applicants/employees with the results of their fingerprint and background checks?

A. That’s a great question. Background checks, including fingerprint checks, for private employers are for the most part a cut-and-dried issue. The Fair Credit Reporting Act says that if a candidate or employee asks for information regarding his or her background report, you need to turn it over.

Go back to your files, before the fingerprints were done, to see what sort of disclosure you made about background checks. Did you disclose that the fingerprints would be done? If so, did the employee request any kind of report or copy? If the person did make such a request, then yes, you do need to turn the report over.

In general, with respect to background checks in California, if applicants or employees tell you that they want information that’s contained in them, because they are consumers—your applicants and employees are “consumers” in the eyes of California and federal law—any information on these reports should be turned over. That’s the key there.

Want more on background checks in California? Join Callahan this Thursday, the 20th, for an in-depth CER webinar you won’t want to miss:

Background Checks in California: The Latest Developments on Criminal Checks, Credit Checks, and More

Background checks are a necessity for employers both here in California and across the country. First, they give an employer the chance to investigate whether applicants have lied, stolen, cheated, been violent, or otherwise engaged in unacceptable behavior. They also give you a way to defend against negligent hiring claims in the event you hire individuals with clean slates who later go over to the dark side.

There are several tools employers here in California may use to conduct background checks. But not all tools of the trade may be legal under state and federal law.

For instance, the Equal Employment Opportunity Commission (EEOC) recently began questioning whether employers are overstepping their bounds by seeking information related to applicants’ and employees’ credit histories. That means there’s an increased focus on employer compliance with federal rules governing background checks.

Closer to home, California employers need to pay extra special attention to compliance issues that may arise when conducting background checks on applicants and employees because of the unique set of state laws that govern these checks here in California, including recently enacted legislation concerning credit checks.

Don’t miss our informative webinar this Thursday, September 20, when you’ll learn:

• How to tell when you may legally run a credit check here in California, under a short list of limited circumstances
• What you must do before conducting a credit check if an exception to the general rule barring the inquiry exists

• Best practices for complying with the numerous other “only in California” rules affecting the use of criminal records

• Tips for legally conducting Internet searches on potential hires, and the limitations placed on your organization concerning information gleaned from social networking sites 

• How to effectively use public records as a tool for conducting background checks and what you should be looking for

• The list of background check practices that are absolutely recommended for all employers to diminish the risk of negligent hiring claims

Claim your spot today!

Download your free copy of Employee Orientation: How To Energize, Integrate, and Retain Your Newest Hires today!