Employers with operations in California are all too familiar with how state and local officials continue to restrict the access employers have to public records, including criminal history information.¹ For example, lengthy delays in completing standard criminal background checks are now routine in California.² Apart from criminal background checks, many employers rely on motor vehicle record checks (MVRs) to vet candidates for positions that require driving as part of the job. In Doe v. California Dept. of Motor Vehicles, the court of appeal rejected the plaintiffs' efforts to enjoin the Department of Motor Vehicles (DMV) from releasing information about the reason for a driver's alcohol-impaired driving license suspension (e.g., the driver had an excessive blood-alcohol level) when the driver has not been convicted. Reversing the trial court, the court of appeal held the disclosure of such information does not constitute the disclosure of information about a non-conviction arrest within the meaning of California's privacy laws. This is a rare "win" for employers in the Golden State.

Public Driver Records

The DMV discloses parts of an individual's driving record, known as the "public driver record," to specific entities under defined circumstances. This record includes the driver's name, identifying details like eye color and height, and license number, class, and current status. Additionally, it features sections such as "Departmental Actions," "Convictions," "Failures to Appear," and "Accidents." In this case, the court of appeal considered the privacy implications surrounding DMV disclosures of alcohol-impaired driving license suspensions, generally known as Administrative Per Se (APS) suspensions.³ The court of appeal addressed whether disclosing the reason for such suspensions - such as excessive blood-alcohol levels - violates privacy laws when no criminal conviction exists.

The Trial Court's Injunction Against the DMV

The plaintiffs alleged that this practice breaches privacy protections against disclosing non-conviction arrests. The trial court ruled for the plaintiffs, in part, finding that the DMV's disclosure of the reason for an APS suspension for which there was no corresponding conviction violated the constitutional right to privacy of noncommercial drivers, but not of commercial drivers, and violated Labor Code section 432.7. The trial court also found the DMV violated the Information Practices Act. The trial court issued a judgment enjoining DMV from the improper practices.

The Court of Appeal's Ruling Reversing the Trial Court

The court of appeal reversed the trial court, in part, including the injunction. The court of appeal determined that the public driver record does not directly disclose the arrest itself but instead reveals the administrative adjudication results, such as "Excessive Blood Alcohol Level" or "Refused Chemical Test." The APS suspension process involves several steps, including an arrest, an officer's sworn report, and a potential evidentiary hearing, leading to the DMV's final determination. This process distinguishes the suspension from mere arrest information because it results from an independent administrative adjudication rather than being solely arrest-based. Furthermore, the process necessitates proof by a preponderance of the evidence, a higher standard than probable cause - the standard for an arrest. The court of appeal ultimately ruled that including the reason for DMV suspensions of this kind does not constitute disclosing non-conviction arrest information under state constitutional and statutory privacy provisions.⁴

Recommendations

Employers with operations in California should continue to be on the lookout for legislation and court opinions that impact their ability to vet applicants and employees. This is a dynamic rather than static area of the law in California. Employers should also consider whether to undertake a broader (and privileged) assessment to strengthen their compliance with federal, state, and local employment laws that regulate use of a candidate's criminal and credit history. Suggested action items for employers with jobs in California, including remote work, are as follows:

• Review and update job applications and related forms for impermissible inquiries regarding criminal records;
• Review and update workplace postings to help ensure all required postings are included;
• Review and update company webpages for necessary additions about fair chance hiring;
• Provide training to recruiters and other personnel involved in posting job openings;
• Provide training to personnel who conduct job interviews and make or influence hiring and staffing decisions to explain permissible inquiries into, and uses of, criminal history;
• Provide training to personnel involved in ordering and adjudicating background reports;
• Review written and electronic communications about the hiring process, including conditional job offer templates and pre-adverse action and adverse action notices;
• Plan for delays in staffing openings due to delays in receiving background reports; and
• Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.

Posted: July 10, 2024

¹ See, e.g., Rod M. Fliegel, Bill Simmons, and Chad Kaldor, County of Los Angeles Enacts a Sweeping Fair Chance Ordinance for the Unincorporated Areas of the County that Far Exceeds Federal and California Law, Littler Insight (Mar. 13, 2024); Rod Fliegel and Alice H. Wang, Changes in California's Regulations Regarding Criminal Records Approved, Littler ASAP (Aug. 1, 2023).

² See, e.g., Rod M. Fliegel, Continuing Privacy Headache for Ordering Criminal Background Checks in California, Littler ASAP (Feb. 23, 2024); Rod M. Fliegel, William J. Simmons and Wendy Buckingham, Governor's Veto Will Likely Result in Continued Delayed or Non-Performable Background Checks in California, Littler ASAP (Oct. 6, 2022).

³ Driving-related convictions, accidents, and suspensions are not disclosed on the public driver record indefinitely. Certain convictions are disclosed for ten or seven years from the date of occurrence; for example, a driving under the influence (DUI) conviction is disclosed for ten years. All other convictions and all accident reports are disclosed for three years. All suspensions are disclosed while in effect. Certain suspensions are not disclosed after the suspension terminates (e.g., failure to pay a child support order); all others are disclosed for three years after the suspension ends. For each suspension disclosed, the public driver record includes the date the suspension began and, if no longer in effect, the date it ended. It also includes the statute authorizing the suspension, for example, "13352," referring to section 13352; and the "Reason" for the suspension, for example, "Excessive blood alcohol level."

⁴ The court of appeal affirmed the judgment in one respect, upholding the trial court's ruling that licensed drivers have a right to seek correction of their driving records under California law.