Background check industry groups have mounted a full-court press to remedy the recent slowdown in criminal record searches in California state courts caused by last year’s court of appeal decision in All of Us or None v. Hamrick.  As a result of this decision, companies doing business in California can no longer rely on their background check companies to provide criminal record searches routinely for courts in various counties, including Los Angeles.  The court of appeal’s opinion did not involve an employment dispute, but had a significant incidental effect on employment screening by impeding the process that background check companies use to “match” candidates to court records.  Such matching is required by the fair credit reporting laws, including the federal Fair Credit Reporting Act (FCRA).  If enacted, Senate Bill (SB) 1262 should reverse the slowdown by again allowing public access to the “identifiers” that background check companies use in the matching process, including the defendant’s date of birth.

The Effects of the Court of Appeal’s Opinion

In Hamrick, the court of appeal emphasized the purpose of protecting the privacy interests of those involved in criminal proceedings.  As previously discussed, the court in Hamrick prohibited a state 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.  The court of appeal’s ruling impacted 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).  Rule 2.507 specifies the information to be included in and, importantly, excluded from court calendars, public indexes, and registers of actions.  The plaintiffs successfully sued the Riverside Superior Court to enforce compliance with Rule 2.507, i.e., to limit public access to date of birth and other personally identifiable information.  After the court issued its opinion, several other county courts, including county courts in Los Angeles, narrowed public access to these identifiers.

Since the FCRA prohibits 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, these companies use identifiers, such as the full date of birth, to make reliable matches.¹  As a practical matter, background check companies and employers have experienced a significant negative impact on both the ability to keep communities and customers safe by performing background checks on applicants, and a substantial delay in filling open positions in some counties in California.  As a result, Senator Steven Bradford of the California State Senate (D-Inglewood), who also chairs the Senate Consumer Protection Committee, introduced SB 1262, currently pending in the Legislature.  If enacted, it will clarify the court of appeal’s opinion in Hamrick that caused California state courts to redact birth dates and driver’s license numbers from their indexes.  SB 1262 will permit searching and filtering of results based on a defendant’s driver’s license number or date of birth, or both.

Takeaways for Employers

If SB 1262 passes, it will reverse the slowdown in criminal background checks by requiring publicly accessible electronic indexes of defendants in criminal cases to allow searches and filtering of search results based on a defendant’s driver’s license number or date of birth, or both.  Meanwhile, employers will have to contend with the slowdown in criminal background checks in Los Angeles and other counties in California.  Consultation with knowledgeable employment law counsel is recommended to identify the options for employers unless and until SB 1262 passes.  Employers have various choices, each with pros and cons.  The balance between the pros and cons will vary by employer, depending on, among other things, the industry and whether the employer is subject to legal or contractual restrictions on hiring ex-offenders with certain offenses (e.g., banks, insurers, etc.).