Recent changes in the use of an individual’s identifiers (date of birth, Social Security Number, etc.) on public record retrieval could have a significant impact on pre-employment background screening. Recent court and state legislative actions in California and Michigan regarding the use of personal identifying information on public records searches could greatly affect pre-employment background screening and, subsequently, a best practice remains to work with a well-qualified third-part background screening agency in order to remain compliant with law.
With California restricting the use of personal information identifiers from public record searches via court action and Michigan essentially doing the same thing through legislative action, the criteria used in retrieving public records could be irrevocably changed.
The use of public records and the accurate retrieval of such are under fire and could alter how public records are pulled in Michigan and California, but, potentially, across the country as well; and a best practice remains to work with a well-qualified third-party pre-employment background screening agency in order remain fully compliant with laws governing the use of public records.
Earlier in 2021 the Supreme Court of Riverside County ruled to restrict the use of personal identifier information for retrieving public records. (All of Us or None of Us, Riverside Chapter v. Hamrick, Cal. S.Ct., No. 269654) This move will significantly impact the use of public records as part of pre-employment background screening.
From JDSupra.com on July 21, 2021 discussing initial findings from the court:
The case centers around a California Rule of Court which 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 what must be excluded from such indexes, including two pieces of information at issue in the case, date of birth and driver’s license number. jdsupra.com/legalnews/california-court-of-appeal-ruling-could-4430508/
The impact of the court case was immediate with several counties in California limiting the use of identifiers in public record retrieval.
On September 8, 2021 JDSupra.com reported that on September 1, 2021 the California State Supreme Court declined to review the lower courts decision. jdsupra.com/legalnews/another-privacy-headache-for-california-7902509/ Further noted in the article, the impact will result in greater challenges for conducting background screening.
From JDSupra.com on September 8, 2021:
Companies that hire employees and engage independent contractors in California should brace for a significant slowdown in background checks that include criminal record searches in California state courts.1 This will result from the court of appeal’s opinion in All of Us or None v. Hamrick, which prohibited the Riverside Superior Court from allowing its electronic criminal case index to be searched using an individual’s known date of birth or driver’s license number. ibid
Additionally a similar action recently took place in Michigan…
From thePBSA.com on June 30, 2021:
…the Michigan Supreme Court issued an order that delays implementation of their rule which would make dates of birth unavailable. The implementation date has been changed from July 1, 2021 until January 1, 2022… thepbsa.org/government-relations/michigan-dob-redaction-information/
With similar actions in two states, often considered to be leaders in governing background screening, the potential for the elimination of certain personal information identifiers in other states remains high. A subsequent best practice is to work with a well-qualified third-party pre-employment background screening agency to remain compliant with law.