California employers should review their employment background check policies to ensure compliance with evolving California law.  A recent Court of Appeal ruling restricted the use of a date of birth and/or a driver’s license number to identify individuals in an electronic search of criminal court records. (All of Us or None v. Hamrick (2021) 64 Cal.App.5th 751.)  This ruling, if not successfully appealed to the California Supreme Court, will impose challenges on employers conducting background checks on job applicants and employees.

This case revolved around California Rule of Court 2.507(c), which governs and specifies how a California state court’s electronic records are made available to the public.  This rule requires that courts provide remote electronic access to its electronic indexes.  This rule also requires courts to exclude specific information from such indexes, including defendants’ dates of birth and driver’s license numbers.

The issue in the case was whether members of the public should be allowed to search Riverside County Superior Court’s electronic database to access court records and data linked to a criminal defendant by inputting a person’s date of birth or driver’s license number.  The plaintiffs alleged that by allowing members of the public to use an individual’s date of birth or driver’s license number as a data point to search the court’s criminal records, Riverside County Superior Court violated California Rule of Court 2.507(c).

Riverside County Superior Court argued that because it did not disclose a person’s date of birth or driver’s license number, it was not in violation of the rule. The Riverside County Superior Court contended that only individuals with independent knowledge of such information could effectively use it as a search criterion to narrow their search parameters.

Unlike the trial court, the Court of Appeal was not persuaded by Riverside County Superior Court’s argument that attempted to distinguish a “search” from a “disclosure” and concluded that allowing the public to search a court’s electronic index by inputting an individual’s known date of birth or driver’s license number constitutes a violation of California Rule of Court 2.507.  The Court of Appeal stated that “in authorizing such searches, defendants may reasonably be said to have failed to exclude date of birth and driver’s license number in the Riverside Superior Court’s index as is required, even assuming that defendants are not disclosing this information.”

After examining the history of California Rule of Court 2.507, the Court of Appeal stated that “while defendants’ alleged practice undoubtedly facilitates public access to information, the rules’ history unequivocally establishes that the drafters of the rules of court governing electronic access to trial court records did not intend simply to maximize the public’s access to information. Rather the drafters sought to balance the public’s access to court records with the privacy concerns of those involved in criminal proceedings.”

The court’s ruling as to how the public can access criminal records will present challenges for employers seeking background checks now that employers conducting background checks will be unable to narrow their searches by date of birth or driver’s license number. As a result, simply searching for the name of a particular applicant or employee may show the criminal history of someone else with the same name, leaving the employer with unreliable and inaccurate information.

Employers are encouraged to carefully review federal, state, and local restrictions to ensure compliance with the sometimes hyper-technical requirements for conducting and using background checks to disqualify applicants. Please do not hesitate to contact NavBat should you have any questions about employment background checks or other employment issues.