72 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com date ranges, information on the frequency with which the information is updated, a description explaining how the databases are checked, and a list of counties for which no data were available.84 Investigations into suspicions of wrongdoing. The ICRAA notice, authorization, and disclosure requirements do not apply if an investigative consumer reporting agency is used to investigate suspicions of wrongdoing or misconduct85 (although certain adverse action requirements in the FCRA and ICRAA do apply). Employer-generated reports. While the FCRA applies only if the employer uses a consumer reporting agency, ICRAA applies to an employer’s own investigative efforts to the extent that they involve obtaining certain public records without the use of a consumer reporting agency. Public records include records of arrest, indictment, conviction, civil judicial action, tax liens, and outstanding judgments.86 If a California employer takes adverse action as a result of receiving such a public record, then the employee has an unwaivable right to receive a copy of the record.87 The first ICRAA appellate case, decided in 2005, involved an employer who had fired the plaintiff when he confessed that he had a felony conviction. The employer induced that confession by interrogating the plaintiff after obtaining an internet copy of a judicial decision mentioning his felony.88 Eight business days after the interrogation, the employer gave the plaintiff the internet copy. The plaintiff then sued for untimely disclosure, seeking the minimum $10,000 penalty for an ICRAA violation. The Court of Appeal made two holdings of interest: (1) the employer could not avoid ICRAA disclosure requirements by arguing that its dismissal of the plaintiff resulted from his admission to a felony conviction instead of the employer’s receipt of the Internet report; the Court of Appeal aggressively read the ICRAA to say that the employer must disclose a copy of the public record if an adverse action was taken under circumstances in which the record was obtained and (2) no specific deadline applies to the required disclosure; rather, the employer must furnish a copy “of any public record uncovered in a background check within a reasonable time after an investigation concludes.”89 Here, the Court of Appeal held, as a matter of law, that eight business days following the plaintiff’s interrogation was a reasonable time in which to furnish a copy of the relevant documents, especially since the employer’s due diligence in asking the plaintiff about his criminal record served to verify that the background “information was accurate and not the result of identity theft or otherwise erroneous.”90 The employer must also provide a copy of all public records obtained even if no adverse action occurs, upon “completion” of the investigation, unless the individual has checked a box, on a written form, to waive the right to receive a copy of the public records.91 Criminal history information. Litigants have disputed whether criminal history information is “character” information governed by ICRAA or “creditworthiness” information governed by CCRAA. In 2012, a California federal district court held that ICRAA is unconstitutionally vague as applied to background reports containing criminal history information. The federal court, reviewing the two statutes and their legislative history, concluded that an item of information can be subject to either ICRAA or CCRAA, but not both. The criminal history information at issue in the case pertained to both the plaintiff’s character and creditworthiness. The federal court held that because there was no rational basis to decide that the information should be governed by one statute versus the other, ICRAA was unconstitutionally vague in that situation and so the federal court dismissed the ICRAA claim.92 But the California Supreme Court has since held that ICRAA is not unconstitutionally vague and that employers can comply with both statutes simultaneously.93
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