Companies that hire employees and engage independent contractors in California should brace themselves for an even greater slowdown in background checks that include criminal record searches in Los Angeles County.¹ This will result from the drastic impact of the court of appeal's 2021 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 (known as "consumer reporting agencies") rely on searching such indexes for criminal background checks in California state courts and elsewhere. According to the County's recent public notice, effective February 23, 2024, the County will no longer include even a partial date of birth (i.e., the month and year of birth) as criteria in its criminal name search engines.

The bottom line is that, unless and until there is legislation to overcome the court of appeal's opinion, companies can expect both delays and, in some instances, results back from their vendors as "unperformable search" (e.g., if the subject of the background check report has a common name).

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 Businesses

In the past few years, 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 exacerbated this significant problem, because most businesses 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, and all the more so, apparently, in Los Angeles County. 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.² 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.³

Background check industry groups, such as Professional Background Screening Association (PBSA), continue to mount a full court press to try to remedy the situation. However, the governor's veto of remedial legislation in 2022 has impeded progress to get things back on track at the California courts. Even if another attempt at a "fix" is possible in Sacramento, 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, etc.;
• 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 and prospective contractors; and
• Assessing pre-hire/engagement paperwork, such as conditional offer letters, to ensure the paperwork includes appropriate contingencies.

Companies should also identify potential indirect issues of concern, for example, how this development in Los Angeles will impact the ability of their vendors, such as temporary staffing agencies, to meet contractual obligations to do their own vetting based on criminal background checks. Such vendors will be grappling with these same issues for the foreseeable future.

Posted: February 28, 2024

¹ Criminal background checks otherwise are heavily regulated by California state law. See, e.g., Rod Fliegel and Alice H. Wang, Changes in California's Regulations Regarding Criminal Records Approved, Littler ASAP (Aug. 1, 2023); Rod M. Fliegel and Allen Lohse, California Statewide Ban-the-Box Law Signed By Governor, Littler Insight (Oct. 16, 2017). Los Angeles and San Francisco impose additional and more onerous restrictions. See Rod M. Fliegel and Jennifer Mora, "Ban-the-Box" and Beyond: Employers That Do Business In or Contract with the City of San Francisco Should Review Sweeping Restrictions Regarding Inquiries Into, and the Use of, Criminal Records, Littler Insight (Feb. 14, 2014); Jennifer L. Mora, Rod M. Fliegel, Allen Lohse, and Christina Cila, City of Los Angeles Mayor to Sign Long-Awaited "Ban the Box" Law, Littler Insight (Dec. 9, 2016).

² See, e.g., 15 U.S.C. § 1681e(b) (the FCRA). See also CFPB Advisory Opinion on Name-Only Matching (Nov. 4, 2021) (https://www.consumerfinance.gov/rules-policy/final-rules/fair-credit-reporting-name-only-matching-procedures/).

³ Data from the U.S. Census Bureau confirms that a great many people have the same last name (e.g., Smith (2.5m) and Johnson (2m)).
See https://www.census.gov/topics/population/genealogy/data/2010_surnames.html (last visited Sept. 6, 2021).