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Do You Need Permission to Run an Employee Background Check?

business woman talking on the phone in her office
By Christopher Coble, Esq. | Last updated on

You may think you're protecting yourself and your small business by running background checks for potential hires. As benevolent as it may be, you could still get into trouble hiring someone with a criminal record. And, after all, prospective employees are probably running background checks on your business. So it's only natural that they would expect you to run background checks on them, right?

But potential employees have legal protections when it comes to background checks. California, for example, requires a person's written authorization before running a hiring background check. And the state supreme court just upheld the law as it relates to small business hires.

Codes and Checks

California's Civil Code states:

If, at any time, an investigative consumer report is sought for employment purposes other than suspicion of wrongdoing or misconduct by the subject of the investigation, the person seeking the investigative consumer report may procure the report, or cause the report to be made, only if ... The consumer has authorized in writing the procurement of the report.

In this case, bus drivers complained that their employer sent them notices that background checks would be conducted on employees, gathering "information about the employees, including criminal records, sex offender registries, address history, driving records, and employment history." While the employees were able to request copies of the completed reports, the company never secured their permission to run the checks in the first place.

The bus drivers sued, and the employers responded that the statue was unconstitutionally vague and conflicted with other credit reporting statutes. But the California Supreme Court disagreed, finding that "potential employers can comply with both statutes without undermining the purpose of either."

Checks and Balances

One law, the state's Consumer Credit Reporting Agencies Act, dealt only with credit reports, and did not require consent. The other, the Investigative Consumer Reporting Agencies Act, did require consent before running the report. Even if some of the information would be the same on either report, the court ruled, employer's must still obtain an existing or prospective employee's permission before conducting any background check that reveals the employee's "character, general reputation, personal characteristics, or mode of living."

While this specific ruling only applies to California employers, there may be similar background check statutes in your state. So check with an experienced employment attorney before running your employee background checks.

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