Impacts of Los Angeles Court’s Revised Search Procedures on Criminal Background Checks
As of February 23, 2024, the Superior Court of Los Angeles County will no longer use birth month and year as search criteria for criminal records. Employers must prepare for background check delays, fewer crimes reported, and the potential for increased risk because of the Court’s change.
The recent announcement by the Superior Court of Los Angeles County that the month and year of birth as criteria in its criminal name search engines will be excluded has significant implications for criminal background checks. Employers must prepare for background check delays, fewer crimes reported, and the potential for increased risk because of the Court’s change.
Understanding the Change
As of February 23, 2024, the Superior Court of Los Angeles County will no longer use birth month and year as search criteria for criminal records. This modification affects both courthouse kiosks and the Court’s website. But what does this mean for individuals and organizations relying on background checks?
The Fair Credit Reporting Act (FCRA)
The FCRA is a federal law that governs how consumer reporting agencies (CRAs) collect, use, and share consumer information. It applies to various aspects of consumer reporting, including criminal background checks. One key aspect of the FCRA is that consumer reporting agencies must ensure the accuracy and completeness of the information they report. The removal of birth month and year from search criteria could affect the accuracy of matches.
Impact on Matching Consumer Data Without birth month and year, matching consumer data becomes much more challenging. Consider the following scenarios:
Common Names: Individuals with common names may now generate more false positives that must be discredited. Without any birthdate information, it’s typically impossible to distinguish between John Smiths and Maria Garcias except in the unlikely case that some other identifier like address or driver’s license number is buried in the record.
Aliases and Nicknames: Some individuals use variations of their names or nicknames. The absence of birthdate details may lead to missed matches.
Data Overlap: Multiple people may share the same name. Birthdates help differentiate them. Without this information, CRAs may struggle to conclusively match information to an applicant, which will cause under-reporting of criminal records.
Importance of Personal Identifiers
Personally identifiable information (PII), including birthdates, plays a crucial role in accurate matching. They help establish a unique identity and prevent confusion. Losing birth month and year as search criteria means relying more on other identifiers like full names, addresses, and Social Security numbers. However, the defendant’s address is infrequently available in criminal records, and Social Security numbers are rarely available.
Redaction of Birth Data by the Superior Court
The Court’s decision to redact birth month and year aims to enhance privacy and reduce the risk of identity theft. However, it introduces complexities for background checks. Employers and CRAs must adapt their processes to account for this change.
Impact on Consumer Reporting Agencies and Employers The shift in the search criteria by the Superior Court of Los Angeles County has significant implications for consumer reporting agencies and employers, including:
Delays in Background Checks: Removing partial date of birth identifiers and other PII may lead to delays in background checks. Accurate matching records becomes more challenging, if not unworkable, without specific details like the month and year of birth. Exhausting the remaining available options slows down the process, affecting hiring timelines.
Lower Detection of Criminal History: The comprehensiveness of background reports relies on precisely matching criminal records. When key identifiers are omitted, the likelihood of being able to identify whether specific criminal history is about an applicant or not decreases. As a result, employers might receive incomplete or less comprehensive reports due to reduced matching precision. This could impact their ability to make informed hiring decisions.
Employer Decision-Making: Employers may need to reassess their risk tolerance, given that not all background checks in Los Angeles can be definitively completed. Some may prioritize privacy and accept lower reliability in detecting criminal history, while others may seek alternative ways to assess risk. The impact varies by industry and job role. Sensitive positions, such as those interacting with the public, especially vulnerable populations, may require more rigorous, lengthier supplementary checks, such as fingerprint-based checks for those industries that are allowed to use them.
Mitigating Controls for Employers
In response to the challenges posed by the Court’s revised search procedures, employers can implement various mitigating controls, including:
Expanded Interviews: Employers can conduct more comprehensive interviews to validate information provided by applicants. For example, if an applicant’s criminal record is unavailable, delve deeper during the interview. Ask about specific life events, employment history (especially gaps in employment), or educational background.
Secondary Verification: Cross-referencing data with other sources (e.g., educational institutions and previous employers) can enhance accuracy. For example, consider reaching out to professional references to help verify information provided by the applicant. Integrating social media screening as part of a screening process can help to provide a holistic view of the applicant’s background.
Documented Processes: Employers should document their background check procedures to demonstrate due diligence. For example, maintain a detailed record of each step in your background check process, including communication with CRAs and any additional verification steps taken.
Loss Prevention: Employers sensitive to employee theft or embezzlement may want to strengthen other controls around inventory and financial processes or invest in workplace monitoring.
Workplace Violence Programs: Given that background checks will be less capable of detecting violent criminal history in Los Angeles, employers may want to invest in additional workplace violence programs, ranging from active shooter procedures to conflict de-escalation training. Employers may consider how to identify and address behavioral red flags that supervisors observe in the workplace.
Insurance: Employers with a heavy presence in Los Angeles may want to revisit their insurance policies covering employee crimes and negligent hiring claims.
Moving Operations: Risk-averse employers may want to shift background-sensitive positions that can be performed anywhere to other locations where court procedures do not expose them to the risk.
Broader Impacts Possible
The All of Us or None of Us v. Hamrick case, decided by the California Court of Appeal on May 26, 2021, played a pivotal role in this change. The Court ruled that an individual’s date of birth (DOB) and driver’s license number cannot be used to identify criminal public records. As a result, date-of-birth search fields were removed from online portals and public-access terminals in courthouses across California.
In 2022, Senate Bill 1262 was introduced before the California Legislature to nullify the Hamrick ruling by reinstating redacted personally identifiable information on public documents. After passing the Assembly with overwhelming support, SB 1262 was vetoed by Governor Gavin Newsom, maintaining the restrictions on using date of birth for criminal background checks, citing a “constitutional right to privacy.”
These decisions signal a shift toward the perception of greater privacy protection within the legal system. Other courts may take cues from these cases and reevaluate their practices regarding personally identifiable information in court indexes.
While the Court’s redaction of birth data ostensibly aims to protect privacy, it necessitates adjusting how criminal background checks are approached. Employers must stay informed, adapt, and strike a balance between workplace risk and privacy.
Release Date: March 1, 2024
Alonzo Martinez
Alonzo Martinez is Associate General Counsel at HireRight, where he supports the company’s compliance, legal research, and thought leadership initiatives in the background screening industry. As a senior contributor at Forbes, Alonzo writes on employment legislation, criminal history reform, pay equity, AI discrimination laws, and the impact of legalized cannabis on employers. Recognized as an industry influencer, he shares insights through his weekly video updates, media appearances, podcasts, and HireRight's compliance webinar series. Alonzo's commitment to advancing industry knowledge ensures HireRight remains at the forefront of creating actionable compliance content.