Another Privacy Headache for California: Court of Appeal Ruling Will Slow Down Criminal Background Checks Throughout California

By Rod M. Fliegel and Garrick Chan?

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.