Can we do a background check on a minor?
A background check may involve different issues, so it is important to know who you are performing the background check on and the protections that apply to minors.
Protections
The typical areas that employers want to obtain information on are pre-employment drug testing, credit checks, and criminal history. When using a third party provider, all applicants have consumer protection laws that apply to them under the Fair Credit Reporting Act (federal and state), which requires disclosure and written consent. In addition, there are unique protections that apply to minors.
These protections exist because minors (persons under the age of 18) are not legally able to consent to contracts or medical testing. Therefore, to satisfy Fair Credit Reporting Act requirements, when a minor is involved, an employer must obtain written parental consent.
In addition, AB 1843 (M. Stone; D-Scotts Valley), a new law that goes into effect January 1, 2017, will prevent most employers from obtaining adjudication records made by a juvenile court involving minors.
Drug Testing, Credit Checks
A drug test is a medical test, so an employer must obtain parental consent before having a minor drug tested.
While credit checks in California already are restricted, a minor may not have a credit history. Because a minor is not legally able to enter into binding legal agreements, the minor may not be able to obtain credit or get a credit card before he/she is 18 years old. Therefore, a credit check performed on a minor may not turn up any information.
Criminal History Records
As of January 1, 2017 no employer, whether a public agency or private individual or corporation, is permitted to ask an applicant for employment to disclose verbally or in writing any information concerning an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. Minors are tried in juvenile courts for criminal offenses and adjudication is the decision made by the court.
This law applies to most employers, with the exception of health care, which can obtain relevant felony and misdemeanor sexual offenses or drug possession records within the prior 5 years.
Although companies may want to treat applicants equally and require the same standards, they should remember that minors have additional protections that apply to them. If you have questions in this area, consult your legal counsel.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
