New Restriction On Background Checks In California – Employment and HR

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New restriction on background checks in California

July 30, 2021

Proskauer Rose LLP

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The California Court of Appeals has ruled that the date of birth and / or a driver’s license number cannot be used to identify individuals by performing an electronic criminal search on court records. All of us or none against Hamrick. This judgment complicates and further limits how and even whether employers can (from a practical point of view) conduct legitimate background checks of job applicants and employees.

The Riverside Superior Court’s order to remove birth dates and driver’s license numbers as data that can be used to identify individuals with a criminal record further hinders, if not impossible, the ability for employers (and others) to conduct criminal background checks. When searching by first and last name only, a particular applicant or employee’s search results can reveal the criminal record of perhaps dozens of other people with the same or similar name.

At the heart of this case is California Rule of Court 2.507 (c), which regulates electronic access to court calendars, registers and litigation registers: In addition to driver’s license number and date of birth, Rule 2.507 (c) requires the following data to be excluded from court calendars, registers and litigation registers: (1) social security number; (2) financial information; (3) information on the warrant; (4) search warrant information; (5) victim information; (6) witness information; (7) ethnicity; (8) age; (9) gender; and (10) government issued ID numbers.

The issue here was whether the public using the Riverside Superior Court’s public website should be allowed to search the court’s electronic index by entering a person’s name, date of birth and / or driver’s license number. The Riverside Superior Court argued that it was not breaking the rules by not making this information public, but allowing people who already had such information to use it as a data point to filter their search.

However, the appellate court was not convinced of the distinction between search and disclosure required by the lower court. The court found that the Riverside Superior Court was in breach of rule 2.507 (c) and concluded: “In authorizing such searches, it can reasonably be assumed that the defendants failed to … date of birth and driver’s license number in the index of the Riverside Superior Court, as required [by the
Rule]even assuming the defendants did not divulge this information. “

As a reminder, as previously mentioned, California law already prohibits an employer with five or more employees from investigating or considering an applicant’s conviction history until the applicant has received a conditional offer of employment. The Fair Chance Act (Assembly Bill No. 1008) also prohibits these employers from considering, distributing, or disseminating information about certain previous arrests, distractions, and convictions that have sealed, fired, repealed, or legally eradicated, effective January 1, 2018 when doing a background check of conviction history.

After submitting a conditional job offer, employers can conduct a criminal record review, but the law requires an individual assessment – the type and severity of the criminal record, the time elapsed since the conviction and the type of job performed or sought. If the employer decides that the applicant’s criminal record is a basis for the cancellation of the job offer, the employer must inform the applicant in writing of the negative conviction (s), provide a copy of the conviction history report and give the applicant at least five working days to to respond before the employer can make a final decision.

California employers should review their background information review guidelines and consult with a legal counsel to ensure they are diligent in following the individual judgment and reporting requirements of the law.

New restriction on background checks in California

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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