Laws Pertaining to Investigative Consumer Reports
There are two primary laws that protect employees during the employment screening process. The first law is a federal law and is called Fair Credit and Reporting Act (FCRA) codified as 15 U.S.C. §1681.
In California there is a more restrictive law called Investigative Consumer Reporting Agency Act (ICRAA) codified California Civil Code section § 1786.10 – § 1786.40.
California Investigative Privacy Laws
The Federal FCRA and it’s Interrelation with California ICRAA.
California has its own version of the FCRA which are titled the Consumer Credit Reporting Agencies Act, Civil Code Section 1785 et al, (CCRAA), and the Investigative Consumer Reporting Agencies Act, Civil Code Section 1786 et al, (ICRAA). These acts can be found in the California Civil Code. Our concern, in this document, deals mostly with the ICRAA.
Since the ICRAA was enacted before September 30, 1996, it supersedes the FCRA in any clause which is more restrictive than the FCRA. Under the ICRAA a consumer is given greater protections than the FCRA and these protections must be followed.
FCRA vs. ICRAA
The California Investigative Consumer Reporting Agencies Act (ICRAA) has a number of clauses which are stricter than the FCRA and must be followed. One clause is in regard to criminal records. The ICRAA, section 1786.18 (as well as Labor Code Section 432.7), only allows the reporting of criminal CONVICTIONS, and limits the conviction information to seven years from the date of disposition, release or parole. This is regardless of the subjects anticipated salary (The general 7-year limitations under the FCRA do not apply to employee’s whose salary is $75,000.00 or more).
Additionally, under Civil Code Section 1786.2 (c), the definition of an “investigative consumer report” (as opposed to just a consumer report) is expanded to include information obtained… through “any means.” This means that a public records check which would be a “consumer report” under the FCRA is considered an “investigative consumer report” under the ICRAA.
Civil Code Section 1786.16 requires that applicants be notified in writing “of the nature and scope of the investigation requested,” and be provided “a summary of the provisions of (their rights) section 1786.22 There are other clauses under California Law which also add greater restrictions and/or requirements to a pre-employment screening.
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