For the past six years Hunter Pyle Law, along with our excellent co-counsel Lewis, Feinberg, Lee and Jackson, P.C., have represented a group of approximately 1200 bus drivers who had illegal background checks run on them by their employer. California law is very clear: with some exceptions not relevant here, before an employer can have a background check company run a background check on an employee, it must do the following:
- It must disclose, in a document consisting solely of that disclosure, that it intends to run a background check; and
- The employee must authorize the background check in writing.
Cal. Civil Code § 1786.16(a)(2). The employer must take these two steps every time that it wants to run a background check. If it does not, it is liable to the employee for a minimum of $10,000, plus attorneys’ fees and punitive damages. Cal. Civil Code § 1786.50.
California’s background check law therefore provides critical protections for California workers. This law was enacted because employers were having background checks run on employees without telling them. Sometimes these background checks would contain wrong information that would then follow the employees around for years, preventing them from getting jobs. The cases that prompted California’s Legislature to act are truly horrible, and involve people being unable to find work, becoming homeless, etc., all because of false information in background checks that they did not even know were being run.
In our case, the defendants, First Student, Inc. and First Transit, Inc. (together “First”), decided that they wanted to run background checks on their bus drivers. They then sent a disclosure form to the drivers that did not consist solely of the disclosure. Rather, the disclosure was part of a booklet that contained other forms. It also contained language releasing HireRIght, the company that performed the background checks, from liability for damages arising out of the background checks.
Additionally, First failed to get authorizations from each of the drivers prior to running the background checks. In other words, it blatantly ignored the requirements of California’s background check statute.
California law also requires that before a background check is run on an employee, the company seeking the background check must certify to the company that prepares the report that it has made the required disclosures to the employees. Cal. Civil Code § 1786.16(a)(4). In our case, First did not provide those certifications to HireRight. This meant that HireRight also violated the law in performing the background check, and should have been held liable in the amount of $10,000 per background check.
The litigation in this case was intense. First and HireRight sent out written questions and requests for documents to each of the 1200 plaintiffs. We responded, which required thousands of attorney hours and many trips to Southern California. However, we were confident in our case and willing to invest that time and energy.
To our surprise, in December 2013, after four years of litigation, First and HireRight convinced our trial court judge, the Honorable John S. Wiley of the Los Angeles Superior Court, to grant summary judgment in our case. First and HireRight argued that California’s background check law, the Investigative Consumer Reporting Agencies Act, or “ICRAA,” was unconstitutionally vague. Judge Wiley agreed, albeit reluctantly, and dismissed Ms. Connor’s case.
We then appealed to the Second District Court of Appeal. That court heard oral argument on July 10, 2015. (You can listen to that argument by emailing me at firstname.lastname@example.org and I will email you the audio file.) On August 12, 2015, the court ruled in our favor. (Please feel free to email me and I will send you the opinion). The court rejected the argument that ICRAA was vague.
The Court of Appeal got it exactly right. There is nothing about California’s background check law that is vague or unconstitutional. We are very pleased with this ruling, and look forward to returning to the trial court where we will continue to litigate these cases.
If you have any questions about background checks and how they work in California, please feel free to contact Hunter Pyle Law for a free consultation. We can be reached at 510.444.4400 or email@example.com.