70 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com credit reporting agency providing the report.66 If the individual has indicated a desire for a copy of the report, then the report user must request that a copy be provided to the individual when the user requests its copy from the credit reporting agency. The report to the individual subject must be provided contemporaneously and at no charge.67 California generally prohibits using credit reports for employment decisions.68 “Credit report” does not include verification of past employment or income that does not otherwise include credit information (such as credit scores, records or history).69 Credit reports are permissible as to the following eight job categories, if the applicant or employee receives written notice of which of these categories applies: (1) managerial positions (as defined in the “executive” exemption in the Wage Orders), (2) positions in the California Department of Justice, (3) sworn peace officer or other law enforcement position, (4) positions for which the information is required to be obtained or disclosed by law, (5) positions involving regular access to bank or credit card information, social security numbers, dates of birth (for a purpose other than routine solicitation or processing of credit card applications in a retail establishment), (6) positions where the person can enter into financial transactions on behalf of the company (includes being a named signatory on employers bank or credit card account, authorization to transfer money, or enter contracts), (7) positions involving access to proprietary or confidential information, and (8) positions with regular workday access to cash totaling $10,000 or more of the employer, a customer, or a client.70 4.11.2 Investigative consumer reports The California Investigative Consumer Reporting Agencies Act (ICRAA)71 governs the use of reports received from investigative consumer reporting agencies on an employee’s or applicant’s “character, general reputation, personal characteristics, and mode of living.”72 Unlike the federal FCRA, which limits the definition of an “investigative consumer report” to information gathered from personal interviews with the subject’s neighbors and associates, the California ICRAA definition extends to collection of information from any source. The aptly named ICRAA is an especially annoying statute, authorizing not only an action for actual and punitive damages plus attorney fees, but also the greater of actual damages or civil penalties of $10,000 per violation.73 There is little case law interpreting whether these penalties apply to each report or each “violation” under the statute. Constitutional questions. Some defendants challenged the constitutionality of ICRAA as applied to criminal records requested for either tenancy or employment purposes. The California Supreme in 2018 rejected that challenge, holding that ICRAA is not unconstitutionally vague as applied to employment background checks. The Supreme Court thus eliminated one threshold defense in ICRAA cases and reinforced the importance of being familiar with the requirements of both ICRAA and CCRAA.74 Background checks. California applicants and employees, unlike individuals in most of America, have a right to see the investigative consumer report even if no adverse action has occurred. The employer must provide on the
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