Citing budget and time constraints on staff, San Luis Obispo (California) Superior Court officials have stopped immediate window service for people seeking bulk criminal record information for background checks and requests for multiple criminal records must be submitted in writing at the counter or by mail, according to a story in the San Luis Obispo Tribune. The Tribune also reports that requests will be processed on a “first-come, first-serve” basis and research taking longer than 10 minutes will cost $15 and copies will cost 50 cents per page. The Tribune report is available at: http://www.sanluisobispo.com/2012/06/01/2089181/background-checks-criminal-records.html. As previously reported in the ESR News blog ‘San Luis Obispo County Impedes Access to Public Criminal Records for Background Checks,’ the Court shut down a public computer terminal containing criminal and traffic record information in March 2012, making the information far less accessible to the general public as well as professional public record researchers working for private background screening firms. A follow up ESR News blog, ‘San Luis Obispo Court Responds to Criticism over Limiting Public Access to Criminal Records by Citing Privacy Concerns,’ reported that Superior Court officials cited “privacy concerns over outdated criminal and victim information” that was “exposed to background checking contractors” as a reason why the Court removed the public computer terminal. The Court Executive Officer, Susan Matherly, citing the California Rules of Court, was concerned with how case information in the Court’s database was used by those seeking to sell it, namely public records researchers working for private background screening firms. “One of the problems I have is that we just don’t know where this information is going and how it’s being used,” Matherly told the Tribune. “The privacy concerns over employment background checks are ill founded since job applicants have expressly authorized a background screening firm to locate the information,” says Lester Rosen, founder and CEO of San Francisco-area based background check firm Employment Screening Resources (ESR). “The new policy makes it much harder for San Luis Obispo employers to fulfill their legal obligation to exercise due diligence in hiring. Without the ability to perform background checks, employers are 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 background checks.” Rosen, author of ‘The Safe Hiring Manual,’ a comprehensive guide to background checks, explains that background 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 (FTC). “The suggestion that background screening firms do not know what they are doing or how to use data is unfounded,” he says. Rosen also believes the policy also reflects a fundamental misunderstanding about the mechanics of criminal record checks for background reports and that it is important Court officials understand the following:
- Under federal law, a background screening firm is known as a “Consumer Reporting Agency” or CRA. Background checks by a CRA are normally only conducted when a consumer has received (or is about to receive) a job offer and the consumer has authorized the background check in writing. Both the applicant and the employer want the report completed to the extent possible within 72 hours, which is the industry standard.
- Any delay in a CRA’s ability to complete reports in a timely manner works to the determent of consumers. Consumers want a CRA to have fast access to criminal records.
- A CRA can only access criminal records with the express written authorization of a job applicant pursuant to the federal Fair Credit Reporting Act (FCRA) and applicable state laws.
- California has one of the strictest laws in the U.S. for background checks: The Investigative Consumer Reporting Agencies Act (ICRA) (CA Civil Code Section 1786 et. seq.).
- Any CRA that violates the California ICRA is subject to civil liability for $10,000 arguably even if there are no actual damages. That is a powerful incentive for background screening firms to be accurate in reporting criminal records (CA Civil Code Section 1786.50).
- The researchers who go to courthouses across the U.S. for background screening firms do NOT make any decision as to what is or is not reportable. One of the services provided by a CRA is that they filter out any information that is non-reportable with reference to applicable federal and state rules.
- Background screening is an intensely regulated task, subject to not only to the FCRA and state laws, but also other laws including civil rights laws and privacy laws. In addition, background screening is subject to regulation by the Equal Employment Opportunity Commission (EEOC). There is also a substantial body of case law on subjects such as accuracy in reporting criminal records.
- Unless expressly authorized by an act of Congress or a state legislature, a private employer cannot utilize the Federal Bureau of Investigation (FBI) database or state criminal database for a “LiveScan” background check. The vast majority of private employers need to utilize the services of a background screening firm to perform a background check.