California Supreme Court to Consider Whether ICRAA Unconstitutionally Vague when Applied to Background Checks

Written By ESR News Blog Editor Thomas Ahearn

The California Supreme Court will review a California Court of Appeal decision in the case of Connor v. First Student, Inc. which held the Investigative Consumer Reporting Agencies Act (ICRAA) “is not unconstitutionally vague” when applied to background checks on employees that are subject to both the ICRAA and the Consumer Credit Reporting Agencies Act (CCRRA).

The ICRAA governs agencies with regard to “investigative consumer reports” that contain information on a consumer’s character, reputation, personal characteristics, or mode of living. The CCRAA governs agencies with regard to “consumer credit reports” that contain information bearing on a consumer’s credit worthiness, credit standing, or credit capacity.

As reported by ESR News in August 2015, the Court of Appeals of California held that the ICRAA was “not unconstitutionally vague” when applied to background checks. The ICRAA is the California state version of the federal Fair Credit Reporting Act (FCRA) that regulates the collection and use of consumer information for background checks nationwide.

According to the Court of Appeals of California, Second District, Division Four decision: There is nothing in either the ICRAA or the CCRAA that precludes application of both acts to information that relates to both character and creditworthiness. Therefore, we conclude the ICRAA is not unconstitutionally vague as applied to such information.

The ICRAA is notable for having many “only in California” requirements in addition to national rules required by the FCRA. California rules provide for a $10,000 potential civil penalty for a violation of the California ICRAA, so the issue of whether the ICRAA applies to background checks is critical for employers using them for employment purposes.

Both the ICRAA and the CCRAA regulate agencies that gather information on consumers to provide to employers, landlords, and others for use in making employment, rental, and other decisions. The California Court of Appeal decision in the case of Connor v. First Student, Inc. is available at https://www.esrcheck.com/file/CONNOR-v-FIRST-STUDENT.pdf.

Until this matter is firmly decided by the courts, employers and background screening firms generally should continue to operate under the current California state rules for background checks. For information about background check solutions from Employment Screening Resources® (ESR), call toll free 888.999.4474 or visit https://www.esrcheck.com.

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