Facing New Criminal Background Check Hurdles 

In recent years, pandemic-related court closures slowed down criminal background checks nationwide. The delay affected hundreds of businesses seeking to hire employees and engage independent contractors. It also interfered with the ability of thousands of job applicants and prospective contractors seeking to start performing work and providing services. 

And now hiring in California just got even more challenging. Employers should prepare for an even greater slowdown with background checks, including criminal record searches, particularly in Los Angeles County.

This slowdown is a direct result of the All of Us or None v. Hamrick case, 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. 

This means that the background check will no longer be able to use identifying information, such as a full date of birth, to make a reliable match. Obtaining criminal records with a name-only match is not using reasonable procedures to assure maximum possible accuracy under section 607(b) of the Fair Credit Reporting Act.

This decision adds a new layer of complexity to the hiring process, particularly for organizations striving to maintain compliance while ensuring the safety and integrity of their workforce.

Why This Matters

Employers must take note of this development for several reasons. First, the accuracy of background checks is paramount to hiring processes, especially in industries where safety and security are of the utmost importance. A mismatch or the inability to confirm a candidate’s criminal history could lead to hiring decisions that might compromise workplace safety or regulatory compliance. 

Furthermore, the inability to use full dates of birth or driver’s license numbers could significantly extend the time required to complete a background check, delaying the hiring process and potentially leading to the loss of qualified candidates to other opportunities.

Implications for Employers

The primary implication of this ruling is the increased difficulty in efficiently identifying potential employees within criminal databases. This could result in a higher risk of mismatches or incomplete background checks, potentially leading employers to inadvertently hire individuals with criminal backgrounds that would otherwise disqualify them from certain positions. 

Moreover, this change may increase the administrative burden on employers and HR departments as they seek alternative methods to vet candidates thoroughly.

Mitigating Criminal Background Check Risks

To mitigate these risks, employers should consider several strategies:

• Broaden Background Check Methods: Employers may need to rely on additional or alternative identifiers beyond the date of birth or driver’s license numbers. This could include a more extensive use of fingerprints (where legally permissible), past employment verification, and professional references as part of a comprehensive background check.
• Enhance Internal Processes: Strengthening the internal review and verification process can help mitigate the risk of hiring mistakes. This includes training HR personnel to closely examine all available information and look for inconsistencies or red flags in a candidate’s history.
• Legal Compliance: Ensure that all hiring practices, especially those related to background checks, fully comply with FCRA guidelines and any relevant state laws. Staying informed about changes in legislation and court rulings is crucial to maintaining compliance.
• Work with Trusted Background Check Providers: Employers should partner with background screening companies that stay abreast of legal developments and adapt their processes accordingly. These providers should offer robust solutions that can navigate the complexities of current legal requirements while delivering accurate and timely results.

Choosing the Right Background Screening Company

When selecting a background screening provider, especially under these new constraints, employers should look for companies with:

• Expertise in Compliance: A provider well-versed in federal and state laws governing employment background checks, including FCRA compliance and specific state restrictions.
• Advanced Technology: Capabilities to accurately match records without relying solely on dates of birth or driver’s license numbers.
• Transparency: Clear communication about the limitations and reliability of the information provided, helping employers make informed decisions.
• Customization: The ability to tailor background checks to meet the specific needs and risk profiles of different positions within an organization.

As employers navigate this evolving landscape, adapting hiring practices and partnering with competent background check providers will be key to overcoming these new challenges. 

This proactive approach will help maintain the integrity of the hiring process, ensuring that organizations can continue to hire confidently and securely, even in the face of increasing legal and procedural hurdles.

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