California Supreme Court Declines to Reverse Restriction on Criminal Background Checks

Employment Law Reporter, Ervin Cohen & Jessup LLP

On September 1, 2021, the California Supreme Court denied certiorari of All of Us or None of Us v. Hamrick, a Court of Appeal decision which, since May 2021, has prohibited the use of a person’s date of birth or driver’s license number to conduct a criminal background check through the California Superior Court online index. 

All of Us or None of Us v. Hamrick

The case centers around a California Rule of Court that specifies how electronic trial court records are made available to the public. Rule 2.503(b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so. Rule 2.503 also specifies that an individual’s date of birth and driver’s license number must be excluded from such indexes. A civil rights organization, on behalf of formerly and currently incarcerated individuals, filed a complaint because Riverside Superior Court’s website allowed access to court records and data linked to a criminal defendant by inputting a person’s date of birth or driver’s license number.

At the trial level, the court granted a demurrer as to Plaintiff’s allegations finding that the website did not violate the Rules of Court. However, the California Court of Appeal reversed, holding the Rules of Court prohibit allowing the public to search an electronic index by inputting an individual’s known date of birth or driver’s license. The California Court of Appeal stated:

After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.

While the plain language of the ruling seems to affect only Riverside County, some courts in other counties have voluntarily removed the date of birth and driver’s license information from criminal records to comply with the decision.

Effect on Employers

This decision will start to have a substantial impact on conducting background checks on prospective hires. Background check companies primarily use these identifiers on court records to make reliable matches. As it is, the Fair Credit Reporting Act (FCRA) prohibits background check companies from attributing criminal records to an individual based only on a “match” between the individual’s name and the name of the defendant in the criminal case. This means that conducting an accurate background check will now be much more difficult. Until the online court search system is updated to allow searches without using the individual’s date of birth or driver’s license number, employers should work with their background check companies to ascertain the nature of the information they can obtain in conducting a background check. 



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