According to the Public Record Update Newsletter for March 2012, a Public Record Retriever Network (PRRN) Member reports that the San Luis Obispo (California) Superior Court has taken steps to impede criminal record searches for background checks in the county by putting the public record access terminals under lock and key and making them off limits to professional public record researchers and private background screening firms. One reason for impeding access to background screening firms and mandating rules that discourage background checks is that the Court Executive Officer believes employers should instead use background checks performed by Federal Bureau of Investigation (FBI).
According to reports from PRRN Member Judith Smith, the Public Record Update Newsletter reported the following about San Luis Obispo Court Executive Officer Susan Matherly:
Ms. Matherly has had it with all the public record search firms hired by employers to check criminal records of local residents that apply for jobs. On March 14th she announced at a local Bar Association luncheon that she was shutting down the public access terminal to background screening firms. And on Monday March 19th she did it. The IT staff removed the public access computer and put it in a locked room to be accessible only by attorneys and their investigators.
The newsletter also summarized the following statements that Matherly made at the March 14th luncheon, as reported by Smith:
- Public access information was never intended for background screeners. Background screening companies just make people not get hired.
- Employers should not be using background screening companies, but rather should be using the DOJ/LiveScan (the FBI).
- There are penal codes stating that the type of research that background screening researchers are doing is illegal. (But she refused to mention what these laws are.)
- Background screening companies and researchers are not trained to know what they are doing.
- There is no identifying information in the computer to know if a researcher has identified the correct person. (Note: The terminal does display a full name and the DOB.)
At the present time, according to the report from Smith, Matherly has instructed the San Luis Obispo Superior Court Clerks that:
- Only attorneys and their investigators now have access to the locked room where the public access computer with access to the public records now resides.
- Clerks are not allowed to provide dockets to anyone except to the defendant or their attorney of record.
- Record searchers may only provide clerks with 10 names a day.
- Clerks may only provide very limited information (for free) if there is only one recent case. Only data provided are the case number, violation and disposition date, the charge, and disposition for convictions. If a charge was dismissed the clerk will not inform the requester. Also, no information is provided on sentencing or parole violations. However, the researcher can obtain this information for a $15.00 fee.
- If a subject name has more than one case, the clerks will only provide the case numbers. The researchers then must order each file to review for a $15.00 fee per case.
However, Matherly’s assertion that employers should use the FBI for background checks instead of private background screening companies is questioned by Lester Rosen, founder and CEO of San Francisco-area based background check firm Employment Screening Resources (ESR).
“The vast majority of private employees do not have access to the state or national fingerprint system,” says Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to background checks. “Fingerprint checks require specific authorization by Congress or the state legislature.”
Rosen says background checks are a critical line of defense to prevent sexual offenders, child molesters, and violent criminals from obtaining jobs that are inappropriate for individuals with serious criminal records. “Without the ability to conduct timely background checks, employers and volunteer groups are significantly handicapped in their efforts to achieve a safe workplace.”
In addition, Rosen explains that the Equal Employment Opportunity Commission (EEOC) Policy Statement on Conviction Records states employers should not use criminal convictions to automatically disqualify job applicants without first determining if there is a “business justification” by considering the following three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
“Not only does the approach used by San Luis Obispo County, if true, show a level of misunderstanding on the subject of criminal background checks and create a potential public safely issue, but it appears to be in conflict with public law,” adds Rosen, referring to California Government Code Section 68150(1), which provides that:
(l) Unless access is otherwise restricted by law, court records created, maintained, preserved, or reproduced under subdivisions (a) and (c) shall be made reasonably accessible to all members of the public for viewing and duplication as the paper records would have been accessible. Unless access is otherwise restricted by law, court records maintained in electronic form shall be viewable at the court, regardless of whether they are also accessible remotely. Reasonable provision shall be made for duplicating the records at cost. Cost shall consist of all costs associated with duplicating the records as determined by the court. (Emphasis added)
In addition, Court in California must operate under the California Rules of Court, which provides in section 2.550(c)
(c) Court records presumed to be open
Unless confidentiality is required by law, court records are presumed to be open.
According to Rosen, “the impact of both of these sections is that public records are not only open and available to anyone, but they cannot be unreasonably restricted.”
Rosen warns that if such restrictions on background checks are allowed to continue, it is only a matter of time before citizens, visitors, and non-profit organizations such as churches, youth sports, and other groups have to deal with the real life fallout of potential injury or harm.
“For example, if a child molester or a serial rapist is able to obtain access to children due to this limitation on criminal records, the County would be scrutinized for their role in making it easier for criminals to avoid detection,” Rosen says about the new policy. “It also places parents that send their children to schools such as Cal Poly (California Polytechnic State University, San Luis Obispo) or Cuesta College in a difficult situation since they can no longer assume San Luis Obispo is a safe place.”
Rosen also worries that San Luis Obispo County, a picturesque spot on the beautiful central California coast that thrives on tourism, will not be able to give assurance to tourists that employers are performing background checks on workers at hotels, wineries, or other tourist destinations in the county. Instead, San Luis Obispo could become the county of choice nationwide for sex offenders and violent criminals.
“The bottom line is that San Luis Obispo is the only county in the entire United States to take steps to impede or prevent criminal background checks,” says Rosen. “It creates an extraordinary situation where San Luis Obispo can become a magnet for sexual offenders and violent offenders nationwide that come to take advantage of what amounts to a ‘shield’ against their true past being made known, all because of the policy change of San Luis Obispo County.”
Rosen adds: “The new policy also makes it much harder for San Luis Obispo employers to fulfill their legal obligation to exercise due diligence in hiring. Lawsuits for negligent hiring are on the increase, but without the ability to perform background checks, employers are placed in a Catch-22 situation where they can be sued for negligent hiring in the San Luis Obispo Court, yet the same court is impeding an employer’s ability to perform a background checks.”
Rosen believes the policy also reflects a fundamental misunderstanding about the mechanics of criminal record checks for background reports. “These checks are conducted routinely in every county in America by researchers and screening firms operating under the federal Fair Credit Reporting Act (FCRA), which is administered by the Federal Trade Commission,” says Rosen. “The suggestion that background screening firms do not know what they are doing or how to use data is unfounded. In addition, these are still public records and any member of the public is entitled to reasonable access regardless of the County’s attitude towards background checks.”
For employers, youth, charitable or volunteer organizations, parents of college students and anyone else interested in the issue of impeding background checks in San Luis Obispo County, the Public Record Update Newsletter reports that the Court Executive Officer, Susan Matherly, can be reached by phone at 805-781-5143 and email at email@example.com.
Employment Screening Resources (ESR) contacted the Court Executive Officer by email to ask if there were any errors or additions to be made to the PRRN report in the Public Record Update Newsletter, or if the Court wanted to add any information. As of the time that this blog was being posted, there has been no response.
For more information about background checks, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and a nationwide background screening firm accredited by The National Association of Professional Background Screeners (NAPBS®) – at http://www.ESRcheck.com or call 415.898.0044 or Toll Free 888.999.0044.
About Employment Screening Resources (ESR):
Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’ – provides accurate and actionable information, empowering employers to make informed safe hiring decisions for the benefit for our clients, their employees, and the public. ESR literally wrote the book on background screening with “The Safe Hiring Manual” by Founder and CEO Lester Rosen. ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by less than two percent of all screening firms. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about Employment Screening Resources (ESR), visit http://www.esrcheck.com/ or call 415.898.0044 or 888.999.4474.
About ESR News:
The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at firstname.lastname@example.org.