California: Background Checks Hindered by Lack of Access to Los Angeles County Data

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All Employers with Employees in CA

EFFECTIVE

February 23, 2024

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Quick Look

  • Los Angeles County Superior Court is no longer offering criminal search matches based on partial birth dates.
  • Employers must reevaluate their background screen programs for compliance.

Discussion

In 2021, in All of Us or None v. Hamrick, the California Court of Appeal stated that 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 Los Angeles County Superior Court recently issued a notice that it will no longer include the month and year of birth (i.e., a partial birth date) as criteria in its criminal name search engines.

 

This means that employers conducting background searches, including data from Los Angeles County Superior Court, will either receive an “unperformable search” result or delayed responses while data is verified as relating to the applicant or employee, if possible. The federal Fair Credit Reporting Act (FCRA) specifically prohibits criminal records from being matched to an individual based solely on having the same name as a defendant in a criminal case.

 

Employers should be evaluating their background screen procedures and requirements to determine whether additional steps should be taken to ensure proper completion of background screens. Until further legal action is taken on this issue, employers are left with navigating the roadblocks it presents.

 

Action Items

  1. Review background screening protocols with background check vendors to ensure procedures are used to meet business need.
  2. Review conditional offer letters to ensure contingencies for background checks are stated.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase