California Archives

California Consumer Privacy Act (CCPA) and Employment Background Screening

Key Points:

Limited Applicability Due to AB 25

Initially, the CCPA broadly defined “consumer” to include job applicants and employees. However, Assembly Bill 25 (AB 25) amended the CCPA to temporarily exclude personal information collected from job applicants, employees, and independent contractors from most CCPA provisions.

This exclusion was in effect until January 1, 2023, after which some CCPA rights were extended to employees and job applicants. As of now, employers must comply with the following CCPA provisions when using background screening services:

Notice at collection–employers must inform applicants about:
What personal data is being collected (e.g., criminal history, credit data, identifiers)
The purpose of data collection (e.g., hiring decisions)

Data security obligations:
Employers must implement reasonable security measures to protect personal data. If a breach occurs due to negligence, affected individuals may sue for statutory damages.

Overlap with Other Laws

Employers in California must also comply with:

Fair Credit Reporting Act (FCRA)
Investigative Consumer Reporting Agencies Act (ICRAA)
Consumer Credit Reporting Agencies Act (CCRAA)

These laws govern how background checks are conducted, what disclosures are required, and how adverse actions must be handled.

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. The summary provided in this alert does not, and cannot, cover in detail what employers need to know about the amendments to the Philadelphia Fair Chance Law or how to incorporate its requirements into their hiring process. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

October 27th, 2025|Compliance Corner, Employment Decisions|

When Headlines Hit Home: Navigating Conflicting Laws on Pending Arrests in California Employment

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Your employee just made the news—hauled away in handcuffs for allegedly punching an elderly man. The incident is unsettling, and your leadership team is asking: Can we terminate him?

If your company is headquartered in Ventura County, but the employee works remotely from his home in the City of Los Angeles, the answer isn’t simple. You’re now facing a legal maze involving California state law, a Los Angeles municipal ordinance, and jurisdictional nuances tied to remote work.

California Law: Arrest ≠ Grounds for Termination

Under California Labor Code § 432.7, employers are prohibited from using arrest records that did not result in a conviction when making employment decisions. This includes pending charges. Although you may be aware of the arrest, you cannot terminate or discipline the employee solely based on it. However, California law does allow employers to:

Conduct an independent investigation into the alleged misconduct.
Take action based on a good-faith belief that the employee engaged in behavior that violates company policy or poses a risk.

Los Angeles Ordinance: Even Stricter Rules

The City of Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO) goes further. It prohibits employers from considering a candidate’s criminal history, including pending arrests, until after a conditional offer of employment has been made. Even then, employers must:

Conduct an individualized assessment.
Provide written notice before taking adverse action.
Allow the employee to respond with mitigating information.

Because your employee works remotely from Los Angeles, these local protections apply, even if your company is based elsewhere.

Jurisdictional Conflict: Who Has Authority?

In employment law, the location where the employee performs work typically determines which laws apply. So, although your company is in Ventura County, the employee’s residence and work location in Los Angeles means:

Los Angeles municipal law applies.
California state law applies.
You must comply with both.

What Employers Should Do

Here’s how to respond:

Pause and Assess
Review all applicable laws and ordinances.
Conduct a Neutral Investigation
Gather facts, interview witnesses, and document findings. Focus on workplace impact, not the arrest itself.
Consult Legal Counsel
Jurisdictional conflicts are complex. Legal guidance is essential.
Review Remote Work Agreements
Ensure that contracts specify the applicable jurisdiction and clearly outline expectations.
Follow the Fair Chance Process
When considering a candidate’s criminal history in an employment decision, comply with both state and local requirements.

Final Thoughts

In today’s remote work environment, jurisdiction matters more than ever. Employers must navigate a patchwork of laws and ordinances that vary by city, county, and state. When an employee’s conduct raises red flags, the legal response must be measured, compliant, and well-documented. If you’re unsure how to proceed, seek legal guidance before making any employment decisions. The cost of getting it wrong could be far greater than the headline itself.

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September 11th, 2025|Compliance Corner, Employment Decisions|

New California Law Prohibits Employers from Telling Applicants That a Driver’s License Is Required for a Job Unless the Position Meets a Two-Part Test

What is this about?
On September 28, 2024, Governor Newsom signed Senate Bill (SB) 1100 to amend California’s Fair Employment & Housing Act (FEHA), making it an unlawful employment practice for an employer to include a statement in a job advertisement, posting, application, or other material that an applicant “must have” a driver’s license unless the employer “reasonably” anticipates driving as an essential job function that cannot be comparably performed by alternative means.

Effective Date:
The law becomes effective on January 1, 2025, as an amendment to Section 12940 of the Government Code.

Who must comply:
The new law applies to employers who regularly employ one or more persons or regularly receive the services of one or more persons providing services under a contract or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities.

Employer Obligations:

Starting January 1, 2025, employers must meet a two-part test before including a statement in a job advertisement, posting, application, or other material stating that an applicant must have a driver’s license:

The employer must reasonably expect driving to be one of the job functions for the position, and
The employer must reasonably believe that satisfying the job function using an alternative form of transportation (such as ride-hailing, taxi, carpooling, bicycling, or walking) would not be comparable in travel time or cost to the business

Why compliance matters:
Like other unlawful employment practices prohibited under the FEHA, employers who violate the new law could face an injunction or declaratory relief (such as being required to hire the applicant) or be held liable for compensatory damages, punitive damages, attorney’s fees, and costs.

What SI is doing:
To help ensure compliance with the new California license law, SI will modify its materials for California employers and applicants to indicate that providing driver’s license information is voluntary, not mandatory—unless the employer informs SI that the job position meets the new law’s two-part test

Employer Considerations:
If a job position does not require a driver’s license, employers may want to consider excluding a motor vehicle record from the background check.

December 26th, 2024|Compliance Corner, Employment Decisions|

LA County Fair Chance Ordinance becomes operational September 3, 2024

What is this about?
On February 27, 2024, the County of Los Angeles Board of Supervisors voted to adopt the County’s Fair Chance Ordinance for Employers (FCO). The FCO aligns with the California Fair Chance Act (FCA), also known as “Ban the Box.” However, it adds several compliance requirements when considering the applicant’s criminal record history to make an employment decision.

Effective Date:The FCO is operative on September 3, 2024.

Who must comply:
The FCO applies to any “employer” located or doing business in the unincorporated areas of Los Angeles County who employs five or more employees regardless of location. The FCO protects both applicants seeking employment and employees seeking promotions, as well as others seeking non-traditional employment, such as contract or freelance work.

New requirements:
Notice of Intent to Conduct Background Check.
This notice must be given along with any conditional offer of employment to the applicant or employee that states (1) the conditional offer is contingent upon a review of a criminal record history and (2) the employer has good cause to conduct the criminal history review “for the specific job position with supporting justification in writing.” It is not enough for the employer to merely state it reviews such information because of a generalized “safety concern.” Specific information is required.

Before employers can take any adverse action against an individual, such as rescinding a conditional job offer, the FCO requires the employer to (1) prepare a written individualized assessment of an applicant’s criminal history in the manner required by the FCO; (2) provide a form of preliminary notice of adverse action with mandatory content; (3) provide a second written individualized assessment if the individual provides information in response to the preliminary notice of adverse action; and (4) provide a final notice of adverse action if the employer makes a final decision to withdraw the conditional offer of employment or take any other adverse action (the final notice must also include mandatory content).

Why compliance matters:
The FCO authorizes public and private remedies, including civil claims. The County of Los Angeles Department of Consumer and Business Affairs (DCBA) is authorized to take appropriate steps to enforce the FCO and conduct investigations of possible violations by an employer. The DCBA may issue monetary penalties of up to $5,000 for the first violation, up to $10,000 for the second violation, and up to $20,000 for the third and subsequent violations.

How SI can help:
SI can help ensure compliance in several ways, including the timing of background checks, the distribution of mandatory and sample notices, and the monitoring of the required time periods for taking adverse action.

August 29th, 2024|Compliance Corner, Employment Decisions|

Reminder about New Requirements for California Employers When Considering Criminal History in Employment Decisions

What is this about?
On February 27, 2024, the County of Los Angeles Board of Supervisors voted to adopt the County’s Fair Chance Ordinance for Employers (FCO). The FCO aligns with the California Fair Chance Act (FCA), also known as “Ban the Box.” However, it adds several compliance requirements when considering the applicant’s criminal record history to make an employment decision.

Effective Date:
The FCO is operative on September 3, 2024.

Who must comply:
The FCO applies to any “employer” located or doing business in the unincorporated areas of Los Angeles County who employs five or more employees regardless of location. The FCO protects both applicants seeking employment and employees seeking promotions, as well as others seeking non-traditional employment, such as contract or freelance work.

New requirements:
Notice of Intent to Conduct Background Check. This notice must be given along with any conditional offer of employment to the applicant or employee that states (1) the conditional offer is contingent upon a review of a criminal record history and (2) the employer has good cause to conduct the criminal history review “for the specific job position with supporting justification in writing.” It is not enough for the employer to merely state it reviews such information because of a generalized “safety concern.” Specific information is required.

Before employers can take any adverse action against an individual, such as rescinding a conditional job offer, the FCO requires the employer to (1) prepare a written individualized assessment of an applicant’s criminal history in the manner required by the FCO, (2) provide a form of preliminary notice of adverse action with mandatory content, (3) provide a second written individualized assessment if the individual provides information in response to the preliminary notice of adverse action, and (4) provide a final notice of adverse action if the employer makes a final decision to withdraw the conditional offer of employment or take any other adverse action (the final notice must also include mandatory content).

Why compliance matters:
The FCO authorizes public and private remedies, including civil claims. The County of Los Angeles Department of Consumer and Business Affairs (DCBA) is authorized to take appropriate steps to enforce the FCO and conduct investigations of possible violations by an employer. The DCBA may issue monetary penalties of up to $5,000 for the first violation, up to $10,000 for the second violation, and up to $20,000 for the third and subsequent violations.

How SI can help:
SI can help ensure compliance in several ways, including the timing of background checks, the distribution of mandatory and sample notices, and the monitoring of the required time periods for taking adverse action.

April 18th, 2024|Compliance Corner, Employment Decisions|

County of Los Angeles Enacts Fair Chance Ordinance New Hiring Requirements for Employers

What is this about?
On February 27, 2024, the County of Los Angeles Board of Supervisors voted to adopt the County’s Fair Chance Ordinance for Employers (FCO). The FCO aligns with the California Fair Chance Act (FCA), also known as “Ban the Box.” However, it adds several compliance requirements when considering the applicant’s criminal record history to make an employment decision.

Effective Date:
The FCO is operative on September 3, 2024.

Who must comply:
The FCO applies to any “employer” located or doing business in the unincorporated areas of Los Angeles County who employs five or more employees regardless of location. The FCO protects both applicants seeking employment and employees seeking promotions, as well as others seeking non-traditional employment, such as contract or freelance work.

New requirements:
Notice of Intent to Conduct Background Check. This notice must be given along with any conditional offer of employment to the applicant or employee that states (1) the conditional offer is contingent upon a review of a criminal record history and (2) the employer has good cause to conduct the criminal history review “for the specific job position with supporting justification in writing.” It is not enough for the employer to merely state it reviews such information because of a generalized “safety concern.” Specific information is required.

Before employers can take any adverse action against an individual, such as rescinding a conditional job offer, the FCO requires the employer to (1) prepare a written individualized assessment of an applicant’s criminal history in the manner required by the FCO; (2) provide a form of preliminary notice of adverse action with mandatory content; (3) provide a second written individualized assessment if the individual provides information in response to the preliminary notice of adverse action; and (4) provide a final notice of adverse action if the employer makes a final decision to withdraw the conditional offer of employment or take any other adverse action (the final notice must also include mandatory content).

Why compliance matters:
The FCO authorizes public and private remedies, including civil claims. The County of Los Angeles Department of Consumer and Business Affairs (DCBA) is authorized to take appropriate steps to enforce the FCO and conduct investigations of possible violations by an employer. The DCBA may issue monetary penalties of up to $5,000 for the first violation, up to $10,000 for the second violation, and up to $20,000 for the third and subsequent violations.

How SI can help:
SI can help ensure compliance in several ways, including the timing of background checks, the distribution of mandatory and sample notices, and the monitoring of the required time periods for taking adverse action.

April 18th, 2024|Compliance Corner, Employment Decisions|

Reminder about New Requirements for California Employers When Considering Criminal History in Employment Decisions

What is this about:

The California Fair Chance Act requires employers to make a conditional offer of employment before considering an applicant’s criminal history. On October 1, 2023, new regulations by the California Civil Rights Department went into effect regarding how employers can use information about an applicant’s criminal history to rescind a conditional offer.

Effective date:

October 1, 2023

What this means:

Before a conditional offer can be rescinded, a California employer must perform an individualized assessment as to whether the applicant’s criminal history “has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” (California Code of Regulations Section 11017.1(c)(1)).

The specific requirements for the individualized assessment must include, at a minimum, consideration of the following factors: •     the nature and gravity of the offense or conduct;
•     the time that has passed since the offense or conduct occurred or the completion of the sentence;
•     the nature of the job held or sought.

If, after the individualized assessment, the employer makes a preliminary decision to revoke the conditional offer, the employer must notify the applicant in writing of the preliminary decision. The notice (which can be part of the pre-adverse action notice) must include all the following information:

•     the conviction(s) that were the basis for the preliminary decision;
•     a copy of the information relied on for the decision;
•     statement that the applicant or their representative has the right (but is not required) to respond before the decision becomes final, including challenging the information’s accuracy and submitting evidence of rehabilitation or mitigating circumstances;
•     the deadline to respond (no less than five business days after receipt of the notice, and email notice is considered received two business days after it is sent).

If the applicant timely notifies the employer in writing that additional time is needed to respond, the applicant must be given at least five additional business days to respond to the notice before the employer’s preliminary decision becomes final.

The new regulations also expressly prohibit employers from (1) mandating that the applicant respond to the notice or provide information or (2) refusing to consider any information provided by the applicant. The employer must notify the applicant in writing of any final decision to rescind the offer and include information regarding available procedures to challenge the decision and the right to contest the decision by filing a complaint with the California Civil Rights Department.

Why this matters:

Violations of the new regulations can result in damages for failure to consider the new criminal evaluation factors, including back pay, front pay, and hiring or reinstatement.

What else still matters:

City of Los Angeles Fair Chance Initiative for Hiring Ordinance (FCIHO)

•     The FCIHO applies broadly to businesses in the city that employ at least 10 people, with certain exceptions.
•     Employers may not ask about an applicant’s record until a conditional offer of employment has been extended.
•     After learning of an applicant’s record, employers must perform an individualized assessment and consider factors including (i) the age of the offense, (ii) the nature of the offense, and (iii) specific duties of the job sought. Written notice must be provided to applicants.
•     The ordinance provides aggrieved job applicants a private right of action.

City & County of San Francisco Fair Chance Ordinance (FCO)

•     The FCO applies to employers with 5 or more employees worldwide and all City contractors, subcontractors, and leaseholders.
•     Employers may not conduct a background check or ask about criminal records until after making a conditional offer of employment.
•     After learning of an applicant’s record, an employer shall conduct an individualized assessment, considering only (i) directly related convictions, (ii) the time that has elapsed since the conviction or unresolved arrest, and (iii) any evidence of inaccuracy or evidence of rehabilitation or other mitigating factors.
•     The employer must provide the applicant with a copy of the FCO Notice and background check report. The applicant has seven days to respond for the purpose of correcting the record, providing evidence of rehabilitation, or any other mitigating factors.
•     Applicants may bring a civil action against the employer or other person violating this FCO.

Best practices:

California state law, the FCIHO, and FCO all require employers to make a conditional offer of employment before considering an applicant’s criminal history. As a best practice, employers should consider using a two-step process when obtaining a background check report. The first step involves obtaining all non-criminal checks, such as a review of the applicant’s employment and educational history. The second step involves obtaining the applicant’s criminal record history after a conditional offer of employment is made.

Several other cities and Hawaii have enacted “ban-the-box” or “fair chance laws” that require a conditional offer of employment be made to applicants before a criminal background check can be made.

How SI can help:

Experienced in preparing background check reports using a two-step process, SI makes the process seamless. We can also provide sample adverse action notices and other guidance.

Disclaimer: This communication is for general informational purposes only and does not constitute legal advice. No recipient should act or refrain from acting based on any information provided here without advice from a qualified attorney licensed in the applicable jurisdiction.

November 1st, 2023|Compliance Corner, Employment Decisions|

New York Civil Cases and the RJI

State courts often have some quirky procedures, and the New York Supreme Court is no exception. Civil records from the New York Supreme Court typically include a reference to an “RJI” and whether it has been filed. What does “RJI” mean?

Definition: RJI is an abbreviation for “Request for Judicial Intervention.” It’s a form that is filed by either a plaintiff or defendant sometime after the summons and complaint is served on the defendant in a civil case.

Filing Effect: When an RJI is filed, the civil case is assigned to a judge.

What does this mean? When a plaintiff files a complaint in the New York Supreme Court to start a civil case, the court’s only action is to assign the case an index number. The court will not take any other action regarding the case – such as deciding a motion or order to show cause or hold a conference or trial – until either the plaintiff or defendant files an RJI. When the RJI is filed, the case is assigned randomly to a judge who will decide everything in the case until it is over.

How long will a case stay in the pre-RJI status? Because New York law does not specify a time limit for pre-RJI status, a civil case could be pending for years without any activity showing on the publicly available docket other than the filing and service of the summons and complaint.

That is the quirk in the New York Supreme Court civil case procedures – the possibility of a lengthy period of no case activity during the pre-RJI status.

To ensure that a civil case is timely prosecuted, many state courts assign a judge to a civil case when the summons and complaint are filed.

March 21st, 2022|Compliance Corner|

How to consider sex offender registry records in California (Updated)

For California employers concerned about hiring sex offenders, there are a few important points to keep in mind.

An employer has a duty to keep the workplace free of sexual harassment and other forms of discrimination under state law. Under the California Fair Employment and Housing Act (FEHA), an employer can face significant liability if it knowingly employs a sex offender and fails to take actions to protect its other employees from unlawful behavior by that person.

To avoid this problem, employers would like to know if they are hiring a registered sex offender. But how can they find out?

Since 2005, the state has operated a Megan’s Law website with a database to obtain access to the state’s list of more than 100,000 registered sex offenders. Created to help state residents better protect their families by being able to search for an individual registrant or by geographic location, the site (https://www.meganslaw.ca.gov/Default.aspx) contains the sex offender’s name, aliases, age, gender, race, address, physical description and, in some cases, a photograph.

While the site would appear to be a boon for employers, state law expressly forbids use of the state’s sex offender registry information for employment purposes. California Penal Code section 209.46(l)(2)(E) prohibits the use of information disclosed on the website for purposes relating to health insurance, insurance, loans, credit, education, housing and employment, among other uses.

Statutory exceptions provide for use “to protect a person at risk,” a term not defined by the Penal Code, as well as for employers required by law or authorized to request criminal history from the California Department of Justice. Examples of businesses that meet this standard may include child care centers, financial institutions and governmental agencies.

An employer who runs afoul of the Penal Code’s prohibition can face actual and exemplary damages, attorneys’ fees and a civil fine. Legislative history explains that the website attempts to protect the public while not inflicting additional punishment on registrants.

For employers trying to walk the fine line of protecting other employees and third parties, such as customers, from potential sex offender registrant employees while not violating the Penal Code, two alternate avenues exist to try to find out information about a sex offender: conviction records and employee/applicant self-disclosure.

Following applicable state and federal law, employers can conduct a criminal background check on applicants and employees and learn of a sex offense conviction. (However, convictions past the seven-year cut-off date in California may not appear on a background check report while the individual may still appear in the sex offender registry). An applicant or employee may also self-disclose a conviction.

Providing another wrinkle for California employers, the state’s Fair Chance Act took effect on January 1, 2018, mandating that employers with five or more employees must wait until after a conditional offer of employment has been made to ask any questions about criminal history. This includes inquiries about convictions, running a background check or other efforts to find out about an applicant’s criminal past.

If the employer decides not to hire the applicant, it must conduct an individualized assessment of the conviction at issue to evaluate whether it has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” Other legal requirements, based on both state and federal law, must also be satisfied if an employer takes an adverse action on the basis of the background check (see our prior blog post (https://scherzer.co/reminder-to-california-employers-about-requirements-when-taking-adverse-action-based-on-a-criminal-record/) for more details).

What if an employer learns that an employee is a registered sex offender from another employee’s perusal of the Megan’s Law website? This situation could trigger liability under section 290.46 and employers should be careful to take action only after evaluating any potential risk the sex offender employee may pose to coworkers or customers, considering all the facts and circumstances.

March 17th, 2022|Compliance Corner|

Expungement of Criminal Convictions – California Style

Some states allow a defendant convicted of a crime to apply for a court order limiting public access to the conviction record or to restore rights and remove disabilities caused by the conviction. This type of order is commonly referred to as an expungement; however, the qualifications for obtaining an expungement and the effect of the expungement vary among the states that allow expungements.

California has an expungement procedure set forth in Penal Code 1203.4. If a defendant meets the qualification of Penal Code 1203.4, the court will allow the defendant to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. The defendant is also relieved from many of the negative consequences of a criminal conviction.

When reviewing California criminal records showing a conviction, it is important to note if there is also a reference to a Penal Code 1203.4 dismissal because this can impact whether the record is reportable in a background check for a California employer. For example, California law does not allow the reporting of criminal records that result in a non-conviction in employment-purpose reports. Even though the record shows a conviction, the Penal Code 1203.4 dismissal effectively means the conviction never happened.

The reference to the code section will typically be found on the case docket, dated a year or so after the conviction date.

January 26th, 2022|Compliance Corner|