2022Criminal Records

Written By Digital Content Editor Thomas Ahearn

On August 31, 2022, the California State Assembly passed Senate Bill 1262 (SB 1262) which would lessen delays in criminal background checks by allowing consumer reporting agencies (CRAs) public access to identifiers used to match individuals to court records, according to the SB 1262 page on the California State Legislature website.

The California State Senate unanimously passed SB 1262 in May 2022 so the bill now heads to the desk of California Governor Gavin Newsom who has until 12 days after delivery to sign or veto the legislation. After 12 days, the bill will be “approved without signature” and enacted with an effective date of January 1, 2023.

The Professional Background Screening Association (PBSA)  a non-profit organization that represents the background screening industry – supported the passage of SB 1262 and urged PBSA members and companies that perform background checks in California to contact their Assemblymembers to discuss the bill.

As of September 6, 2022, the bill is currently going through the technical process of “enrollment and engrossing” before it is presented to the Governor Newsom, according to the PBSA, which encourages stakeholders to reach out to the Governor and voice support for “this vital measure.” They may do so via email.

Consumer reporting agencies (CRAs) that conduct criminal background checks usually search court records for a date of birth (DOB) or driver’s license number (DLN) 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 Fair Credit Reporting Act (FCRA).

Introduced by California State Senator Steven Bradford (D-35th District) in February 2022, SB 1262 requires publicly accessible electronic indexes of defendants in criminal cases to permit searches based on a defendant’s DLN or DOB, or both. SB 1262 would amend Section 69842 of the California 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.

Why is SB 1262 important? In May 2021, a California Court of Appeals ruled in All of Us or None v. Hamrick that a DOB and DLN 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 background checks in California more difficult.

In July 2021, the Consumer Data Industry Association (CDIA) and the PBSA submitted a letter to the California Supreme Court about the ruling that said: “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 that background checks in California would be difficult without DOBs or DLNs. “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 Human Resources technology company specializing in background, drug, and occupational health screening. ClearStar offers background checks to empower employers to make better hiring decisions. To learn more, contact ClearStar.

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