Written By ESR News Blog Editor Thomas Ahearn

On May 24, 2022, Senate Bill 1262 (SB 1262) passed in the California State Senate by a unanimous vote. If enacted, the legislation would help stop delays in criminal background checks by again allowing public access to “identifiers” used to match individuals to court records such as the defendant’s date of birth (DOB).

Introduced by California State Senator Steven Bradford (Democrat-35th District) on February 17, 2022, SB 1262 would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both.

Existing law requires a clerk of the superior court to keep an index of any action or proceeding filed in the court and also requires a separate index for plaintiffs and defendants in civil actions and for defendants in criminal actions, according to SB 1262, which would amend Section 69842 of the Government Code to read:

The clerk of the superior court shall keep indexes to ensure ready reference to any action or proceeding filed in the court. There shall be separate indexes of plaintiffs and defendants in civil actions and of defendants in criminal actions. The name of each plaintiff and defendant shall be indexed and there shall appear opposite each name indexed the number of the action or proceeding and the name or names of the adverse litigant or litigants. Publicly accessible electronic indexes of defendants in criminal cases shall permit searches and filtering of results based on a defendant’s driver’s license number or date of birth, or both.

Consumer reporting agencies (CRAs) that conduct criminal background checks usually search court records for a DOB or driver’s license number along with the subject’s name so they can be sure they are looking at the right records to comply with accuracy requirements under the federal Fair Credit Reporting Act (FCRA).

However, in May 2021 a California Court of Appeals ruled in All of Us or None v. Hamrick that a DOB and driver’s license number cannot be used to identify an individual when searching a court’s electronic criminal index. The ruling – based on California Rules of Court, Rule 2.507 – made criminal background checks more difficult.

In July 2021, the Professional Background Screening Association (PBSA), a non-profit organization representing the background screening industry, and the Consumer Data Industry Association (CDIA), the voice of the consumer reporting industry, submitted a letter to the California Supreme Court in response to the ruling.

The letter stated the ruling would “precipitate an utter disaster in nearly every sector of the California economy. 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 incorrectly interpreted Rule 2.507 because “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.”

The PBSA and CDIA said background checks would be difficult without DOBs or driver’s license numbers. “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.”

A survey titled “Background Screening: Trends in the U.S. and Abroad” released in August 2021 by the PBSA and HR.com indicated that criminal background checks were the most common type of background screening used by employers with 93 percent of those surveyed responding they relied on that method of screening.

Employment Screening Resources (ESR) is a service offering of ClearStar, a leading HR-technology company specializing in background, drug, and medical screening. ClearStar and ESR are both accredited under the PBSA’s Background Screening Agency Accreditation Program (BSAAP). To learn more, contact ESR today.

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