Clients’ express frustration with California’s background check limitations. It is frustrating for us and our court researchers trying to perform criminal conviction searches and return results on a timely basis.
This article lists the limitations and is summarized below. We encourage you to visit the article and read the entire article. We are posting this information to let as many companies know what has happened in California. We encourage employers to express their frustration with their appropriate California state representative.
The situation arose from a May 2021 California Court of Appeal decision in All of Us or None — Riverside Chapter v. Hamrick, which has prevented background screeners from using dates of birth or driver’s license numbers as input terms in electronic criminal record searches.
While the ruling was related to Riverside County, it is applicable statewide. California superior courts—county by county—have since been removing the date-of-birth search field from online portals and public-access terminals in courthouses, severely restricting background checks, especially for those with common names.
“A background check is dependent on personal identifiers,” said Melissa Sorenson, executive director of the Professional Background Screening Association (PBSA). “Using first and last name alone can return hundreds or thousands of results. That’s why screeners filter those results using personal identifiers like date of birth.” [R&A Comment – We have posted previously about the problems associated with using name and address only.]
“Los Angeles County has been hit particularly hard by these changes,”. “With a high volume of background check requests and a large population with common names, the delays can be substantial. This can leave people waiting weeks or months for background checks to clear, stalling job applications.”
“Some courts are more willing than others to try to find workarounds,” said Rory Bogdon, public records access director at PBSA. “Some are more restrictive. The ultimate result is that the background screening process in particularly high-volume jurisdictions is taking significantly longer and most notably for people with common names.”
Some counties allow businesses to petition county court offices for information, while others limit the amount of time allowed to search or the number of searches that can be performed.
In-person records searches are allowed in Los Angeles County but are limited to five records per day per researcher, making background checks for people with common names effectively impossible, said Spencer Waldron, a partner with Fisher Phillips in Irvine, Calif.
It’s estimated that there are over 100,000 employment screens requested per month in Los Angeles County.
Bogdon stated that being able to access identifying information on public records—with the consent of the applicants—does not violate any fair chance hiring or clean slate laws. The screener already has the date-of-birth information and just needs to input the identifier and get back records where they match.”
The PBSA took action following the 2021 ruling, including introducing legislation in 2022 that would have allowed screeners to use their date of birth to search for a record without making the date publicly available. The bipartisan bill passed both chambers of the California legislature before Gov. Gavin Newsom vetoed it.
Meanwhile, background check delays continue to worsen throughout the state, creating significant challenges for employers and job seekers alike.
Employers are in an impossible position trying to fill open roles with limited or no tools to complete a background check, including for positions that have access to minors and other vulnerable populations.”
Hartley advised employers to be aware of the potential delays and factor them into their hiring timeline.
“Employers must adjust their hiring screening processes to account for the longer wait times. Educate your candidates on the potential delays and what might be behind it,” she said.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.336.0287 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
