For more than a year and a half, background checks in California have been subject to grueling delays, making it more difficult for many employers to employ staff in key positions quickly. Although recent actions in the California legislature gave some hope to businesses that the status quo would soon change, a quick veto by Governor Gavin Newsom's pen put that hope quickly to rest.
At issue is the status of certain types of personally identifiable information found in court records, specifically within the court indexes that record defendants. Before the May 2021 court ruling, these records typically contained additional information about defendants, such as their driver’s license number or, more importantly, their date of birth.
Alleging mismanagement of private information, an advocacy group sued the state and won. The courts ruled that data such as date of birth was confidential and should no longer be a part of public criminal records. Since then, state and county courts throughout California have had to redact birth date information from their records.
Birth dates are one of consumer reporting agencies' most important data points to verify that a criminal record matches a job applicant under consideration. Making this match is essential for informing employers accurately of what they need to know.
Consumer agencies have had to resort to other techniques and approaches without the opportunity to match birth dates. These are more costly and time-consuming, resulting in delayed background checks across many industries. Many had hoped that the state legislature would act to restore the previous public nature of this information.
Those hopes were not misplaced, but the outcome was not what many had anticipated. Lawmakers passed a minor amendment that would re-authorize background check companies to search court indexes by either birthday, driver’s license number, or both. Both houses of the legislature passed the law overwhelmingly. Unfortunately, the governor's veto puts those efforts back at square one.
Newsom's veto letter claims that the law is too broad, potentially allowing anyone to access the state's online systems and search for criminal record information using these data points. Legislators now face the task of returning to the drawing board to determine what next steps remain available to them. Any changes will likely come later in the 2023 legislative session.
For employers within California, this setback will likely prove quite frustrating. Delays are not likely to improve; reporting agencies must carry out extra due diligence to provide records businesses can safely and legally consider. Building more time into the hiring process and keeping applicants informed of potential delays are two strategies that may bear fruit.
For now, companies will need to bide their time and adapt to these circumstances while striving to remain within the boundaries of the law. Any change—and thus any relief in the delays and backlogs—remains months away.
About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments