Are-Your-Companys-Employment-Background-Check-Policies-Legal.jpg (2149×1159)One of the most horrifying experiences in a professionals’ life is the realization that your employer is breaking the law. And we’re not talking about a simple slip in regulation maintenance. Every now and then (more frequently than we like to admit) a manager or even an exec chooses a path that they must know is against the law, and they make this choice for unethical reasons. Fudging financial documents, gendered work assignments, or skimping on safety features are all common employer misconduct.

But if you’re part of the hiring process, you are in a unique position to unveil a very common illegal decision employers make: To unethically use background checks when selecting candidates to hire. Today, we’re here to highlight some of the biggest signs that your company’s employment background check policies are both breaking the law and disadvantaging good candidates.

1) Candidates are Not Told There Will Be a Background Check

Any time an employer runs a background check, they must tell the subject (job candidate) about each check they will do (employment, credit, criminal) and get written permission to do these checks. They must also provide a free copy of background check results to candidates upon request, and make requesting a copy a check-box option on the permission forms. No secret background checks are allowed.

2) Candidates are Asked to Pay for Their Background Checks

Under no circumstances can candidates be asked to pay for their background checks. Any company that does this is usually running a scam that asks every candidate to pay, effectively fleecing anyone who is not selected whether or not a background check is run. But even if your company only runs one check per hire, the cost is on them. They cannot legally offload this to candidates.

Not to mention, any kind of ‘application fee’ can be used as a Jim Crow Law style discrimination to ‘weed out’ candidates who are struggling financially.

3) Background Checks are Run Before a Job Offer is Made

In fact, employers are only allowed to perform a background check after they have made a job offer (contingent on the check) and the candidate has accepted. This means that employers, even on their own dime and “with permission” from the application form cannot make their final decision based on comparative background checks. They have to like someone and plan to hire them directly before a check can be made.

4) There is a Blanket Disqualification for Any Criminal Background Results

California is a “Ban the Box” state meaning that blanket refusal based on ‘any’ criminal background is considered prejudiced. Because some populations, like African Americans, are disproportionately charged and convicted of small crimes, a blanket disqualification for criminal record is also a way to enforce racial and ethnic hiring bias. The box being banned is the application question “Have you ever been convicted of a crime?” which is too broad to be considered a fair hiring basis.

5) The Disqualifying Factors Can Be Traced to Hiring Bias

In Ban the Box states, employers are required to define what a disqualifying background check detail might be. Like a history of financial fraud for a bank job. But these qualifications are up to the employer to determine, and sometimes their choices of disqualifying factors are used to back their hiring biases instead of relating directly to the job. For example, refusing to hire anyone with outstanding debts, who has lived in the ‘bad part of town’, or anyone who shoplifted as a teenager are all ways to subtly refuse to hire people who are from poorer or ethnically specific backgrounds.

6) The Disqualifying Factors Do Not Directly Relate to the Job

In fact, employers have to be very strict about their decisions based on background checks. Most disqualifications will be considered unlawful and unethical unless they relate directly to the job. You might want to bar shoplifters for an inventory management job. But teen shoplifting should not be a disqualification for, say, a driving position that doesn’t handle merchandise. A past instance of credit card fraud might keep someone from being hired in a financial career, but not for stocking boxes. Keep a very close eye on which background details are being used for hiring decisions.

7) Results are Not Vetted After Receipt

Employers are also required to make sure the information they are acting on is current and lawful. Private background checkers don’t always get the right information. They may have details that should have been expunged by the court, or items that lawfully should have expired from background checks. Or arrests that are too old to legally appear because they did not end in convictions. They may even have information on the wrong person with a similar name. It is an employer’s job to vet the information they get once they get it, before making any decisions.

8) Candidates Are Not Allowed to Clarify Results

Finally, if your company is about to cut a candidate loose because of a background check result, a candidate must be given a chance to address the situation. If anything about the background check is inaccurate or unlawfully included, the candidate should be allowed to make that clear, and no decisions can be made on unlawful background results. Candidates should also be allowed to put past convictions in perspective, backed with facts, which may erase the reason for disqualification. For example, they were charged but not convicted of mail fraud after helping their sick grandmother pick up her mail without signed permission.

Is your employer unlawfully conducting or using background checks? Have you been confronted with unlawful use of background checks in your job search? If the answer to either of these questions seems to be “Yes”, contact us today. Here at Aiman-Smith & Marcy, we are dedicated to standing up to illegal and unethical actions from big companies for the sake of current and future employees. Whether you have witnessed or been subject to an illegal use of California employment background checks, we can help.

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Lisseth Bayona


Education and Background

I am a Los Angeles native and daughter of Salvadorian immigrants. From an early age, my parents instilled the value of hard work and education in me and my two siblings. Their perseverance enabled each of us to graduate from college and earn professional degrees.

My interest and commitment to workers’ rights have roots in my parents’ experiences as undocumented workers in Los Angeles. Witnessing the challenges they faced inspired me to pursue a career where I can help individuals confronted with similar struggles. To help someone in those moments is very satisfying. I love connecting with people and learning about their stories. I believe that dignity in the workplace is a right of all workers, not a convenience or privilege reserved for employees of a certain race, gender, age, sexual orientation, or gender identity.

Legal Experience

I received my J.D. from the University of Southern California (USC) Gould School of Law. While there, I served as a judicial extern to the Honorable Patrick J. Walsh of the United States District Court for the Central District of California, where I drafted a criminal judicial opinion. Also, while at Gould, I served as an extern for the U.S. Attorney’s Office for the Central District of California. As a Criminal Division Extern, I had the opportunity to work closely with a trial team of Assistant U.S. Attorneys on a money laundering case which further sparked my interest in litigation.

Personal Interests

In my free time, I enjoy urban vegetable gardening, traveling, and spending time with my nephew and niece. I also love to spend time at San Onofre Beach learning to surf, although admittedly, I am not very good.



Hallie L. Von Rock

Attorney (SBN 233152)

Education and Background

I moved to the Bay Area from Washington after graduating high school. I had been accepted to UC Berkeley through a program where I could defer for two years while getting my California residency and attending community college, which was significant since I was paying for college on my own. I began working for Randall Aiman-Smith and Reed Marcy in 1996 as an office manager while taking night classes. My first foray into the legal world was soon after starting at the firm when I was ready to transfer to UC Berkeley. Rather than accepting my resident status, the Board of Regents took the position that California residency required a student to be in California “two calendar years.” Randall and Reed took up my case with the same verve as they helped their actual clients and I got the chance to comb through the UC Berkeley library to read their codes and regulations to support my position. In that experience, I learned what is was like to feel helpless against a big organization and then to have dedicated attorneys in my corner to take up my cause.

After a break to pursue my major in art history, I went to UC Hastings College of Law and continued working with Randall and Reed. Having worked together now for over 25 years, we have a unique ability to work collaboratively and finish each other’s sentences. I have strived throughout my career to make a difference in the lives of our clients. At the end of the day, if I am helping someone to get compensation for losses they suffered, then I know that all the work put into a case has been worth it.

Legal Experience

I have extensive experience in civil litigation and class action cases, including conducting discovery and depositions, calculating damages analysis, preparing motions for certification, writing appellate documents, and overseeing claims administration. We have handled several class actions against retailers where plaintiffs claimed they were forced to purchase clothing to wear to work and were not compensated for these purchases, including against Abercrombie & Fitch, Hugo Boss, Armani Exchange, Uniqlo, Dollar Tree, and Ross. Recently, I was trial counsel in a defamation claim against Bank of America on behalf of a former employee who claimed the Bank blacklisted her with future employers. The jury found Bank of America liable, including for punitive damages.

Personal Interests

Aiman-Smith & Marcy has sponsored me in the Boston Marathon and New York Marathon. When I race, I often wear a “Rockstar Ronan” shirt to support research for childhood cancer through The Ronan Thompson Foundation.


University of California, Berkeley, B.A., 1999

Hastings College of the Law, University of California, J.D., 2004

Randall Aiman-Smith

Abogado (SBN 124599)

Aiman-Smith & Marcy. Oakland consumer fraud attorneys.

Educación y antecedentes

Fui afortunado. A pesar de no haber terminado la escuela secundaria o la universidad, pude -aunque con mucho trabajo- ser admitido y sobresalir en una de las mejores escuelas de derecho del país: La Facultad de Derecho de la Universidad de Berkeley. Mientras estuve allí, tuve el privilegio de ser editor de la California Law Review y miembro del Moot Court Board, asesorando en la redacción de escritos y en la defensa de apelaciones a otros estudiantes. Después de salir de la escuela de derecho, en mis primeros años de práctica, enseñé la escritura legal y la defensa de apelación en la Universidad de California, Hastings College of the Law. También, a lo largo de los años, he sido presentador en eventos de educación legal continua.

Experiencia legal

He sido abogado durante 35 años. He dedicado mi práctica exclusivamente a representar a empleados, consumidores e inversores en los tribunales estatales y federales de primera instancia y en los tribunales de apelación. Me gusta ir a los tribunales por mis clientes y he llevado muchos casos con jurado en los tribunales estatales y federales.

¿Ejemplos? En 2010, fui la abogada principal, junto con los otros abogados del bufete, en el caso Williams v. Union Pacific Railroad donde, después de cuatro años de preparación, el bufete obtuvo un veredicto del jurado de 1.670.000 dólares para una empleada afroamericana. En Rivero v. Surdyka, fui el abogado principal en el juicio y la apelación de un caso de derechos civiles que duró 15 años, incluyendo un juicio completo y tres apelaciones al Noveno Circuito, concluyendo finalmente con una sentencia para los demandantes de más de 2.300.000 dólares. Estos casos ilustran el lema del bufete: compromiso – resultados. Hay que comprometerse con un caso, a veces durante mucho tiempo, para obtener el resultado que el cliente merece.

No siempre ganamos en el juicio. Cuando eso ocurre, el compromiso significa llevar el caso al siguiente nivel y recurrirlo. En el caso Rivero, antes mencionado, eso fue lo que ocurrió: el tribunal desestimó el caso -habíamos perdido- pero apelamos y conseguimos una victoria para nuestros clientes que mantuvimos a través de dos apelaciones más. Desde entonces, el bufete ha conseguido muchas victorias en apelación que reivindican los derechos de los empleados y los consumidores.

A lo largo de los años he sido abogado de los demandantes en numerosos casos individuales y acciones colectivas. Puede sonar cursi, o difícil de creer, pero después de todo este tiempo, y después de todas las grandes experiencias que he tenido, mi parte favorita de ser abogado es cuando consigo dar un cheque a mi cliente.



Facultad de Derecho, Universidad de California, Berkeley, J.D., 1986