In 2021, California decided it would no longer make the identifiers, like birthdates, on court records accessible to the public through its websites. This decision continues to pose hurdles in pre-employment screening efforts by employers who want to ensure workplace safety.
In this article, we’ll discuss California’s Birthdate Redaction law, the reasoning behind it, and its consequences for employers and consumer reporting agencies.
How California Introduced Its Birthdate Redaction Law
A statewide rule in California Rules of Court, rule 2.507, seeks to protect the privacy interests of those involved in criminal proceedings. In a court case, All of Us or None of Us v. Hamrick, the plaintiff – an organization that seeks to help ex-offenders – argued that using DOB and driver’s license numbers to look up criminal history is against 2.507. Although the defendants won in the trial court, the Court of Appeal reasoned that looking up Personally Identifiable Information of ex-offenders ran afoul of the purpose of 2.507.
As the mentioned rule applies to the entire state, the decision implied all state courts had to limit public access to identifiers like DOB in court files, effectively hiding the identity of past offenders from public eyes.
The Reasoning Behind California’s DOB Redaction Law
In essence, the DOB redaction law is an effort to give ex-offenders the right to live a better life free of preconceived biases. However, CRAs and employers are rightfully concerned about the security of their workplaces against individuals with histories of repeated serious misconduct and felonies. Despite protests and efforts like Senate Bill 1262 – a legislative effort to reverse DOB redaction – California continues to enforce this law. Governor Newsom, who vetoed S1262, cited the protection of an individual’s constitutional right to privacy as his reason for making such a decision too.
The Consequences of California’s DOB Redaction
We’ve previously discussed the necessity of running background checks before hiring in detail – they protect your workspace, clients, and mission. With California’s date of birth redaction, background screening of individuals who are from California or have previously lived there will be complicated.
Without the full date of birth, matching candidates to criminal records will rely on their names and partial dates of birth. The FCRA prohibits matching criminal records to individuals based on names only, and given the sheer commonality of names, the idea is not feasible or fair either. Similarly, a partial date of birth only consists of the month and year, also providing insufficient data to connect people to criminal records.
Under such circ*mstances, Consumer Reporting Agencies are limited to verifying Personally Identifiable Information from the county court office. Whereas this procedure offers hope, it’s lengthy and unpredictable as it entails waiting to hear back from court clerks for undetermined time periods.
How Counties in California are Handling PII Requests
Whereas a majority of county court offices in California are providing full DOB information, the following approaches by counties are making the processes cumbersome:
- Taking CRA’s requests for PII on an appointment basis and limiting the appointment time to one hour
- Asking for the additional fee associated with obtaining full DOB
- Limiting the number of requests sent by agencies per day.
Some counties are refusing the requests as well.
What Employers and Background Check Agencies Can Expect After DOB Redaction
Given such circ*mstances, employers and background check companies can expect the following:
- Longer search times for background checks involving current or previous California residents
- More expensive searches, especially in places like Los Angeles, where CRAs have to order and pay for complete DOB data
- Criminal background checks being impossible to conduct for common names in counties where no PII data is being provided
What Employers Can Do in the Face of DOB Redaction to Ensure Protection
If you’re an employer, we recommend you stay in touch with your background screening organization to know which counties are posing hurdles to background checks and where the process is going smoothly. It’s also in your best interests to notify executives so they can plan for the future of your hiring criteria and business continuity accordingly.
It’s also best to ensure you record the middle names of your employees to get more identifiers to assist in pre-employment background screening. You can check with your state’s legalities regarding obtaining criminal record information directly from your candidates. However, this method can lead to unreliable answers or bias against candidates who speak the truth, so prepare your HR accordingly.
How Verified First is Helping Organizations in the Face of California’s DOB Redaction
At Verified First, we believe in a fair, inclusive, and diverse workplace. We have often stressed the need to train HR appropriately to remain unbiased and objective when dealing with candidates with criminal histories associated with them. That said, we believe not having access to essential candidate background details can be detrimental to an organization and its clients, as many countless cases involving theft, fraud, harassment, and assault have proven.
We aim to help organizations stay prepared in terms of changing regulations. Verified First’s in-house Public records team consists of compliance, legal, SHRM, and PBSA-certified experts to help clients navigate ever-changing legislation. We’ve conducted webinars about the topic with the help of InformData previously and will strive to keep providing our clients with more resources.
Endnote
In this day and age, where crime rates keep skyrocketing, employers are responsible for protecting their staff members and organizations. California’s decision to hide identifiers, like birthdates, from court records poses a significant hurdle in background checks. It’s best that you work with an experienced background check provider with an expansive database and comprehensive analytical procedures to ensure you stay protected.
Contact us today to ensure your organization mitigates risks by vetting potential candidates and existing employees thoroughly.
