Privacy Issues in the Workplace

(d) Be of good moral character, as determined by a thorough background investigation…

(f) Be found to be free from any physical, emotional, or mental condition which might adversely affect the exercise of the powers of a peace officer. Physical condition shall be evaluated by a licensed physician and surgeon. Emotional and mental condition shall be evaluated by a licensed physician and surgeon or by a licensed psychologist who has a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders…

The California Commission on Peace Officers Standards and Training (P.O.S.T.) has instituted regulations in furtherance of the requirements imposed by Government Code section 1031 which set forth additional procedures and requirements for agencies. As discussed above, the FCRA and ICRA impact the conduct of background investigations, even for peace officers. One significant concern for employers in this regard are restrictions on the types of information that may be included in a background report prepared by a third party. While California law can provide an exception to these restrictions when an employer is required by a regulatory agency, e.g., P.O.S.T., to consider such information, federal law provides no such exception. If the restrictions on the information which may be reported by a third party do not permit an agency to conduct an adequate background investigation, the agency should give serious consideration to conducting the investigation in-house in which case the restrictions do not apply. C. C RIMINAL R ECORDS California law restricts access to and use of information about job applicants’ criminal histories. Labor Code section 432.7 describes permissible and impermissible uses for criminal information. The rules in this section raise two distinct classes of criminal records; those that an employer may not use and those that it may use.

1. T IMING FOR W HEN E MPLOYER C AN O BTAIN C ONVICTION H ISTORY

Government Code section 12952 makes it an unlawful employment practice for an employer with five or more employees to do any of the following:

 To include on any application for employment, before the employer makes a conditional offer of employment, any question that seeks the disclosure of the applicant’s conviction history.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 29