July 28, 2021

Volume XI, Number 209

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California Court of Appeal Ruling Could Severely Restrict Employment Background Checks

California employers should review their employment background check procedures in light of recent developments. The California Court of Appeal recently ruled in All of Us or None of Us v. Hamrick that an individual’s date of birth and driver’s license number cannot be used as data identifying a criminal defendant in public records.  The ruling will, if upheld, affect employers and third-party consumer reporting agencies when conducting background checks on applicants or employees.

The case centers around a California Rule of Court which specifies how electronic trial court records are made available to the public. Rule 2.503 (b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so. Rule 2.503 also specifies what must be excluded from such indexes, including two pieces of information at issue in the case, date of birth and driver’s license number.

Plaintiff – a civil rights organization for formerly and currently incarcerated individuals – filed a complaint because Riverside Superior Court’s website allowed access to court records and data linked to a criminal defendant by inputting a person’s date of birth or driver’s license number. However, an individual would have to know the person’s date of birth or driver’s license already in order to access the information.

At the trial level, the court granted a demurrer as to Plaintiff’s allegations finding that the website did not violate the Rules of Court. However, the California Court of Appeal reversed, holding the Rules of Court prohibit allowing the public to search an electronic index by inputting an individual’s known date of birth or driver’s license.

The California Court of Appeal stated:

After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.

While currently only directly affecting Riverside County, the ruling by the Court of Appeal has already encouraged other courts in California to remove the date of birth information from criminal records. A diverse group of trade associations and businesses have signed on to an amicus letter to the California Supreme Court asking to reverse the decision.

This change in how criminal records are made accessible by courts could pose difficulties for employers and applicants/employees. In particular, employers who are required to conduct criminal background checks will have less reliable information in determining if an applicant or employee must be disqualified from a position. And similarly troubling, employees and applicants may have a greater risk of mistaken identity in which criminal history appears in their background check information that does not belong to them. While such mistakes may be resolved when the employer provides notice of the disqualifying conviction via the process outlined in state and federal background check requirements, it will also cause undue stress. It may also make disproving that a conviction belongs to an employee or applicant more difficult to rebut without the ability to cross-reference with identifying information such as a driver’s license number.

As this change unfolds across California, employers should carefully review background checks and continue to follow the process of individualized assessment and notice required by state, federal, and local ordinances when assessing if an employee or applicant should be disqualified from a position.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 202
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About this Author

Garen E. Dodge Labor Lawyer Jackson Lewis
Principal

Garen Dodge, a principal in the Washington, D.C. region office, has spent his career working side by side with clients looking to tackle the thorniest of labor and employment issues with creative solutions.

He has successfully defended employers, including Fortune 500 companies in a broad range of industries, including restaurants and retail, in matters involving privacy, discrimination, background checks, harassment, wage and hour, and occupational safety and health. His Washington, D.C. experience extends to representing clients before Congress and various...

703-483-8300
Jonathan A. Siegel, Labor, Employment Attorney, Jackson Lewis, Law Firm
Principal

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful...

949-885-1360
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