Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Companies that hire employees and engage independent contractors in California should brace for a significant slowdown in background checks that include criminal record searches in California state courts.1 This will result from the court of appeal’s opinion in All of Us or None v. Hamrick, which prohibited the Riverside Superior Court from allowing its electronic criminal case index to be searched using an individual’s known date of birth or driver’s license number. Background check companies rely on searching such indexes for most criminal background checks in California state courts. And, while the lawsuit was brought against the Riverside Superior Court only, the court of appeal’s ruling impacts most California state courts, because the court’s ruling was based on a statewide law: California Rules of Court, rule 2.507 (Rule 2.507).2
The Court of Appeal’s Opinion
In All of Us or None v. Hamrick, the plaintiffs, including a civil and human rights organization supporting ex-offenders, alleged that Riverside County and its executive officer and clerk allowed users of the Riverside Superior Court’s public website to search the court’s electronic criminal case index by inputting a defendant’s known date of birth and driver’s license number, in violation Rule 2.507. Rule 2.507 specifies the information to be included in and excluded from court calendars, indexes, and registers of actions.
In the trial court, the defendants successfully argued that allowing the public to search the index using an individual’s known date of birth or driver’s license did not run afoul of Rule 2.507, because the index was not making those identifiers available to the general public in the first instance. But the court of appeal rejected that argument, reasoning the text of the rule was not limited to publicly disclosing only information not otherwise known to the person accessing the index. The court also emphasized the purpose of the rule: protecting the privacy interests of those involved in criminal proceedings.
On September 1, 2021, the California Supreme Court declined to review the court of appeal’s opinion.
Takeaways for Employers
Last year, pandemic-related court closures slowed down criminal background checks nationwide. The delay affected hundreds of businesses seeking to hire employees and engage independent contractors. It also interfered with the ability of thousands of job applicants and prospective contractors seeking to start performing work and providing services. The court of appeal’s opinion threatens to be yet another serious setback in California, because most employers rely on background check companies for criminal background checks, and most background check companies rely on index-based searches to source criminal records, including serious felonies (e.g., rape, murder, arson, etc.).
The problem is not going to be easy to overcome. The fair credit reporting laws, such as the federal Fair Credit Reporting Act (FCRA), outright prohibit background check companies from attributing criminal records to an individual based only on a “match” between the individual’s name and the name of the defendant in the criminal case.3 These companies use other “identifiers,” such as the full date of birth, to make reliable matches. As a practical matter, without access to date of birth information, background check companies may not be able to complete some criminal record searches at all.4
Background check industry groups, such as Professional Background Screening Association (PBSA), are mounting a full court press to try to remedy the situation. However, even if a “fix” is possible, it is not likely to be any time soon. Meanwhile, businesses that conduct criminal background checks should consider doing the following:
- Notifying executives and operations of this development for sake of planning and business continuity, especially if the company is required to conduct criminal background checks by law or contractual agreement;
- Coordinating with the background check company to receive real-time updates about problematic counties;
- Evaluating existing background check “packages” (i.e., the types of searches included in background checks) to determine whether to fortify them;
- Assessing options for and legal limitations on gathering criminal record information directly from candidates themselves; and
- Assessing pre-hire/engagement paperwork, such as conditional offer letters, to ensure the paperwork includes appropriate contingencies.5
Companies should also identify potential indirect issues of concern, for example, how this development in California will impact the ability of their vendors, such as temporary staffing agencies, to meet contractual obligations to do their own vetting. Such vendors will be grappling with these same issues for the foreseeable future.
1 Criminal background checks are heavily regulated by California state law. See, e.g., Rod M. Fliegel and Allen Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017). Los Angeles and San Francisco impose additional and more onerous restrictions. See Rod M. Fliegel and Jennifer Mora, “Ban-the-Box” and Beyond: Employers That Do Business In or Contract with the City of San Francisco Should Review Sweeping Restrictions Regarding Inquiries Into, and the Use of, Criminal Records, Littler Insight (Feb. 14, 2014); Jennifer L. Mora, Rod M. Fliegel, Allen Lohse, and Christina Cila, City of Los Angeles Mayor to Sign Long-Awaited “Ban the Box” Law, Littler Insight (Dec. 9, 2016).
2 According to one of the leading industry groups, the Professional Background Screening Association: “the following counties have removed date of birth from their online portals and their public-access terminals: Los Angeles (population 10m), Riverside (2.4m), Kern (900k), Ventura (840k), and San Joaquin (760k). Additionally, the following counties have removed date of birth from their online portals, but not their public-access terminals: Santa Clara (population 1.9m), Alameda (1.67m), Fresno (999k), Tulare (466k), Monterey (428k), and Yuba (78k).” See https://thepbsa.org/government-relations/michigan-dob-redaction-information/ (last visited Sept. 6, 2021).
3 See, e.g., 15 U.S.C. § 1681e(b).
4 Data from the U.S. Census Bureau confirms that a great many people have the same last name (e.g., Smith (2.5m) and Johnson (2m)). See https://www.census.gov/topics/population/genealogy/data/2010_surnames.html (last visited Sept. 6, 2021).
5 Littler’s report on recalling furloughed workers included some suggestions along these same lines. See Kathryn Siegel, Dan Thieme, Claire Deason, Rod M. Fliegel, Nancy Delogu, and Hector Galeano, The Next Normal: A Littler Insight on Returning to Work – Recalling Furloughed Employees and the Rehire Process, Littler Insight (Apr. 28, 2020).