70 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com (6) positions where the person can enter into financial transactions on behalf of the company (includes being a named a signatory on the employer’s 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 belonging to the employer, a customer, or a client.93 4.11.2 Investigative consumer reports The California Investigative Consumer Reporting Agencies Act (ICRAA)94 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.”95 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 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.96 There is little case law interpreting whether these penalties apply to each report or each “violation” under the statute. Constitutional questions. Some defendants have challenged the constitutionality of ICRAA as applied to criminal records requested for either tenancy or employment purposes. The California Supreme Court 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.97 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 authorization form a box that an individual can check to request a copy of any report that is sought for reasons other than suspicion that the subject of the investigation has engaged in wrongdoing or misconduct.98 ICRAA also imposes detailed requirements. Thus, a California employer asking an employee or applicant to sign a form authorizing the employer to obtain an investigative consumer report from a reporting agency must disclose, in a writing consisting solely of the disclosure, information such as the following:99 the permissible purpose for obtaining the report, that an investigative consumer report may be obtained (as the FCRA requires), that the report is being obtained for employment purposes (as the FCRA requires), that the report may include information on the individual’s character, general reputation, personal characteristics, and mode of living (as the FCRA requires), the nature and scope of the investigation requested (which the FCRA requires only if the individual asks), the name, address, telephone number, and website of the investigative consumer reporting agency that will conduct the investigation (the website information is beyond what the FCRA requires),100
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