California: Potential Roadblock for Background Checks

Applies to:          All Employers with CA Employees

Effective:             May 26, 2021

In All of Us or None v. Hamrick, the California Court of Appeal stated that the electronic court criminal records cannot be searchable by protected personal information. California Rules of Court, Rule 2.507(c) requires that courts exclude “date of birth” and “driver’s license number” from a court’s electronic court index. The court said that rule was violated by allowing users of the Riverside Superior Court’s public website to search the court’s electronic index using a date of birth and driver’s license number. Specifically, even though the public is providing the personally identifiable information to search the electronic court index, the public is able to verify that a particular person has a criminal record, thereby failing to exclude the protected information from the index. Moreover, the purpose of the rule is to protect the privacy of those involved in criminal proceedings.

This case is important given that background check companies rely on searching court indexes for criminal background checks. The federal Fair Credit Reporting Act (FCRA) and other similar laws prohibit background check companies from attributing criminal records to an individual based only on a name match.  Rather, background check companies use other identifying information to make data matches, such as date of birth.  Without access to this information in electronic court indexes, background check companies may receive incomplete data on an individual. Employers should consult with background check providers to verify current procedures and search results.

Action Items

1. Communicate with background check service providers to verify thoroughness of services.
2. Subscribers can call our HR Hotline at (833) 268-5531 for further assistance.

Applies to:          All Employers with CA Employees

Effective:             May 26, 2021

In All of Us or None v. Hamrick, the California Court of Appeal stated that the electronic court criminal records cannot be searchable by protected personal information. California Rules of Court, Rule 2.507(c) requires that courts exclude “date of birth” and “driver’s license number” from a court’s electronic court index. The court said that rule was violated by allowing users of the Riverside Superior Court’s public website to search the court’s electronic index using a date of birth and driver’s license number. Specifically, even though the public is providing the personally identifiable information to search the electronic court index, the public is able to verify that a particular person has a criminal record, thereby failing to exclude the protected information from the index. Moreover, the purpose of the rule is to protect the privacy of those involved in criminal proceedings.

This case is important given that background check companies rely on searching court indexes for criminal background checks. The federal Fair Credit Reporting Act (FCRA) and other similar laws prohibit background check companies from attributing criminal records to an individual based only on a name match.  Rather, background check companies use other identifying information to make data matches, such as date of birth.  Without access to this information in electronic court indexes, background check companies may receive incomplete data on an individual. Employers should consult with background check providers to verify current procedures and search results.

Action Items

1. Communicate with background check service providers to verify thoroughness of services.
2. Subscribers can call our HR Hotline at (833) 268-5531 for further assistance.