Restrictions on Background Checks in California – What HR needs to Hear!
There has been a shift in how you can legally conduct background checks in California. The California Court of Appeal recently ruled that the driver’s license and/or date of birth shouldn’t be used as identifiers for individuals in the criminal index of court records. These changes complicate the process for background checks and whether or not employers can actually perform these checks.
Removing these two data sets from the background check process makes it difficult to know who an employer is performing a background check for. Employers are only left with the last and first name as reference points, resulting in them seeing records for several people. Third identifiers have been critical in the past for positive ID validation.
The California Rules of Court 2.507 is the focal point
For reference, Rule 2.507 is the regulation that points out the specifics in this case. It governs the access to court indexes, calendars, and registering of actions. The rule eliminates access to several data points besides driver’s license and date of birth. Some of the other data points that are prohibited from background checks include:
- Social security number
- Government-issued identification card numbers
- Financial information
- Search warrant information
- Arrest warrant information
- Witness information
- Victim information
The search vs. disclosure distinction
The new restrictions on background checks in California also include changes in search and disclosures. The original question that led to the ruling was whether it was legal to allow the public to perform background checks on the Riverside Superior Court’s public website by using the driver’s license number and/or birthdate. Originally, the Riverside Superior Court insisted that they weren’t in violation of the verdict. The court claimed that it didn’t disclose any information to the public.
The search versus disclosure argument didn’t persuade the Court of Appeal. Instead, the people who already had this information used it as a data point for their background check. The Court of Appeal found the Riverside Superior Court to violate the rule by citing that it failed to exclude the information in question by authorizing searches that involved it.
The background check process for employers
Legally, any employer with five or more employees shouldn’t consider the conviction history before offering the potential employee a conditional offer of employment. The Fair Chance Act, which took effect on January 1st, 2018, prohibits employers from distributing, disseminating, or considering any information related to the diversions, arrests, or convictions that have been dismissed, sealed, statutorily eradicated, or expunged when performing a background check based on conviction history.
While an employer is only allowed to perform the criminal history check once they make a conditional offer of employment, they are legally obligated to perform an individualized assessment. This means they should consider the nature of the job sought or held, the gravity and nature of criminal history, and the time between the job application and conviction. An employer who determines that an applicant’s criminal history warrants rescinding the offer of employment should notify the applicant of the decision and the disqualifying convictions in writing. The applicant is allowed five business days to respond before the employer can make the final decision.
Review your background check policy
These new changes require tweaks to the typical background check process. Every employer needs to reassess its policies. If in doubt, consulting a competent legal counsel could be appropriate to ensuring compliance.