A recent change in California law regarding the governance of background screening could have significant impact on employers seeking to vet new hires. California is often seen as a leader in laws governing background screening and a court ruling eliminating the use of date of birth and driver’s license number will create challenges for hiring managers and HR departments, further highlighting the urgent need to work with a well-qualified third-party pre-employment background screening agency to remain compliant.
A California Court of Appeals has acted to remove date of birth and/or driver’s license numbers from being used as identifiers on individuals via electronic search, further complicating the acquisition of key data regarding new hires and the vetting process. Challenges to the use of public data as part of the pre-employment process continues to be complicated by court action, and the ruling in California should alert any hiring manager and/or HR Department to work with a third-party background screening agency to remain compliant with existing and forthcoming law.
Recently the California Court of Appeal ruled against the use of DOB and Driver’s License as part of electronic County Court searches, thus creating greater challenges and concern regarding pre-employment background screening.
California is a leading state regarding laws governing the use of public records, such as criminal history records, in pre-employment background screening and action taken by this state could spread across the country.
From The National Law Review’s website on July 28, 2021:
By ordering the Riverside Superior Court to remove birthdates and driver’s license numbers as data that can be used to identify individuals with a criminal record, the ability of employers (and others) to conduct criminal background checks will be further impeded if not made impossible. With the use of only a first and last name to conduct the search, the search results of a particular applicant or employee may show the criminal history of perhaps dozens of other people with the same or a similar name. natlawreview.com/article/new-restriction-background-checks-california
Various public agencies, associations and organizations are fighting back at the harsh reality the court decision has created.
From the website of Consumer Data Industry Association on July 16, 2021:
On July 15, 2021, a diverse group of trade associations and businesses, all with a keen interest in protecting the public, signed on to an amicus letter to the California Supreme Court asking the Court to reverse a lower court decision that, if left standing, would render most employment in the state severely delayed, and in many instances, they will no longer be possible at all. The amicus effort was led by the Consumer Data Industry Association (CDIA) and the Professional Background Screening Association (PBSA). On July 22, CDIA and PBSA filed a supplemental amicus with 13 additional businesses and associations. cdiaonline.org/15723-2/
Ultimately a higher court may be forced to further review this ruling, but challenges will be ongoing.
A best practice remains to work with a well-qualified third-party pre-employment background agency. The challenge of the California decision will impact hiring and create further confusion as the courts will surely have to make a final decision, a decision that could take years and eventually end up in the Supreme Court of the United States.
Important Note: The challenges the court record retrieval process is facing in light of this new California law could make it impossible to verify the identity of a person on a criminal record during a court check without using personally identifiable information like date of birth and/or driver’s license number and why keeping these records on file at a courthouse without these key details would deem this record keeping process completely pointless to the extent that keeping any court records on file will become absolutely useless as these documents will not be able to prove anything without a way to identify and verify a record match to any individual.