An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

B ACKGROUND C HECKS

Section 4

A. T HE P URPOSE O F A B ACKGROUND C HECK The purpose of a pre-employment background check is to ascertain an applicant’s qualifications for employment. Ideally, this process involves more than merely confirming the applicant’s work history. An effective background check assesses the applicant’s job skills, disciplinary history, initiative, willingness to learn new tasks, ability to function with co-workers and supervisors, leadership skills, and many other factors. A thorough background investigation allows a school to obtain objective information about a job applicant’s employment history and work performance. A candidate might intentionally or inadvertently omit information from the application which would disqualify the applicant from the position sought. Applicants also tend to disclose only positive references and sometimes exaggerate their work experience. The reference check can potentially counteract these efforts, and therefore, is probably the most important part of the hiring process. In some instances, schools are required by statute to conduct reference checks to determine whether job applicants are qualified for employment and whether current employees are qualified for promotion or new assignments. The California Constitution and many state and federal laws regulate the proper scope of and appropriate manner for conducting background investigations. Reference checks are especially critical for positions that involve responsibility for the safety and care of children. Conducting a reference check can be challenging, however, particularly since some employers will not provide detailed references about former employees. Further, a school may be exposed to liability if its background checks are not conducted in accordance with the law. B. L EGAL I SSUES R EGARDING B ACKGROUND I NVESTIGATIONS 1. P RIVACY I SSUES A school must be careful not to violate the privacy rights of job applicants. A school should conduct background checks in a manner that elicits information that is relevant only to determining candidates’ qualifications for the jobs they are seeking. The California Constitution provides a right to privacy with regard to applicants’ medical histories:

“There is no reason in law or policy why an employer should be allowed access to detailed family or medical histories of its employees, or to the intricacies of its employees’ mental processes, except with an individual’s freely-given consent to the particular disclosure or some other substantial justification.” 123

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 54