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Written By ESR News Blog Editor Thomas Ahearn
On July 15, 2021, the Professional Background Screening Association (PBSA) and the Consumer Data Industry Association (CDIA) submitted an amicus letter to the California Supreme Court in response to the opinion in the case of All of Us or None of Us v. Hamrick that will prohibit a superior court from displaying the date of birth (DOB) in records used by consumer reporting agencies (CRAs) conducting criminal background checks.
The PBSA and CDIA sent the amicus letter on behalf of members “because the Court of Appeal’s opinion is about to precipitate an utter disaster in nearly every sector of the California economy. In fact, it has already begun. If this Court does not reverse the opinion, criminal background checks – which make most employment in this State possible – will be severely delayed, and in many instances they will no longer be possible at all.”
The letter stated the opinion is premised on an incorrect interpretation of Rule of Court 2.507(c) that prohibits a superior court from displaying DOBs in certain documents. “But nothing in the rule’s text bars searches that employ these identifiers as filters. The Court of Appeal misread the rule by collapsing the crucial distinction between displaying and searching, which has resulted in a blanket ban on search fields for date of birth,” it read.
“When conducting a search for criminal records, the background screening company uses identifiers provided by the consumer (like date of birth) as an indispensable tool to identify records that pertain to the consumer applicant, and eliminate records of other persons with the same name. So… the superior court is not affirmatively disclosing any new information merely by offering these identifiers as a filtering option,” read the letter.
In the case of All of Us or None of Us v. Hamrick, the plaintiff – a civil rights organization for formerly and currently incarcerated individuals – filed a complaint because Riverside Superior Court allowed access to court records of a criminal defendant by entering a person’s date of birth on its website. A trial court granted a demurrer and found the website did not violate the Rules of Court. However, the California Court of Appeal reversed the finding.
The opinion 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.”
The PBSA and CDIA say background checks will be difficult without dates of birth. “Practically speaking, it will no longer be possible to consult criminal records in California for purposes of conducting routine background checks for many or most employment, tenant, and volunteer applicants. This Court should grant review of Hamrick in order to restore the effective operation of criminal background checks in California.”
The majority of organizations in the United States report conducting at least one type of background screening. According to a survey titled “Background Screening: Trends and Uses in Today’s Global Economy” released by the PBSA and HR.com, 94 percent of employers stated their organization conducted one or more types of employment background screening while 73 percent of employers had a documented screening policy in 2020.
Employment Screening Resources® (ESR) – a leading global provider of background checks that was ranked the number one background screening firm by HRO Today in 2020 – is accredited by the PBSA, a non-profit trade group representing the background screening industry, for proving compliance with the PBSA’s Background Screening Agency Accreditation Program (BSAAP). To learn more about ESR, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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