An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

 Written notice to the applicant must be provided, giving the applicant the opportunity to receive a copy of the report at no charge. 133  If the employer makes an adverse employment decision based in whole or in part upon the report, it must advise the applicant of that fact and provide the name and address of the agency that furnished the report. 134

In addition, the FCRA and the California Investigative Consumer Reporting Agencies Act (“ICRAA”) 135 impact many other aspects of the background investigation process as discussed below. 1. T HE F EDERAL F AIR C REDIT R EPORTING A CT The FCRA 136 is federal legislation that not only restricts the use of credit reports, but also impacts background investigations performed by consumer reporting agencies. a. The FCRA Does Not Apply When Schools Conduct Reference Checks In- House. The FCRA governs the requisition, distribution, and use of “consumer reports,” which, by definition, must be prepared by a consumer reporting agency. A consumer report is defined as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living” which is used or expected to be used for, among other purposes, “employment purposes.” 137 Thus, a reference check that is performed by a school, not a consumer reporting agency, does not constitute a consumer report and is not governed by the FCRA. b. A School’s Obligations When It Uses a Consumer Reporting Agency.

 Within three days of requesting a report, the school must make a “clear and conspicuous disclosure” to the applicant in a document that consists solely of the disclosure that a consumer report might be obtained for employment purposes. 138  The applicant must provide written authorization to the school to obtain the report. 139  The school must certify to the consumer reporting agency that (1) the required disclosures have been made to the applicant; (2) the applicant has provided written authorization to procure the report; and (3) the information in the report will not be used in violation of any applicable federal or state equal employment opportunity law or regulation. 140  Upon written request by the applicant (made within a reasonable period of time after the applicant receives the above disclosure), the school must make a complete and accurate written disclosure of the nature and scope of the investigative consumer report that the consumer reporting agency has

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 62