Ongoing Background Checks in California: Navigating the "Evergreen Clause" Challenge

It's important to remember that before you can request a background check on a candidate, you must first obtain their consent. This is done through obtaining disclosure and authorization forms. If you choose to use the Verified First email invitation, these forms will be included. The forms contained in the email invitation for the candidate to review and sign, grants permission for background checks not only during the pre-employment screening process but also throughout their employment with your company, should they be hired. This is often referred to as "evergreen" language.

California law presents a unique challenge when it comes to conducting ongoing background checks on employees. This is due to the state's stance on "evergreen clauses," which are statements in disclosure forms that grant an employer ongoing permission to run background checks throughout employment. California generally doesn't recognize these clauses, making it tricky to conduct continuous screening.

How can employers in California handle background checks for their candidates and employees, especially with new monitoring services?

Unfortunately, there's no clear-cut answer or established case law to provide definitive guidance. Here are a few common approaches employers are taking:

1. The "Risk-It" Approach: Some employers simply conduct ongoing checks without obtaining renewed consent. This approach carries some risk, as it could potentially lead to legal challenges. However, these employers operate on the understanding they'll only receive a report if a "hit" (a red flag in the background check) occurs.
2. The "Disclosure Per Hit" Approach: To ensure compliance, some employers work with their Consumer Reporting Agency (CRA) to send a new disclosure and authorization form to the individual every time a potential issue arises in their background check. This ensures the individual is aware of and consents to each specific check before it's finalized and reported to the employer.
3. The "Separate Forms" Approach: Another option is to obtain separate consent for pre-employment screening and then again for ongoing monitoring. This approach argues that the initial disclosure isn't "used" until a report is generated, justifying the need for a separate authorization for ongoing checks. This method is generally effective if the CRA only reports "hits" and not "clears" (clear background checks).  If this is the direction you choose to go, Verified First provides a sample ‘CA Monitoring’ authorization form that can be used in our Forms Library within the portal.

Important Note: This is a complex legal area with no easy answers. It's crucial to consult with legal counsel to determine the best approach for your specific situation and ensure compliance with California's evolving laws.

Key Takeaways for California Employers:

• Evergreen clauses are not recognized in California. You'll need to obtain consent for each background check you conduct.
• There are different approaches to handling ongoing background checks. Weigh the risks and benefits of each with your legal counsel.
• Stay informed about changes in the law. California employment law is dynamic, so staying current is essential.

This article provides a general overview and should not be taken as legal advice. Always consult with your legal team to ensure your background check practices are compliant with all applicable laws and regulations.