Significant delays in the background check process are causing headaches in California, leaving applications for jobs and housing stuck while making it harder for employers and landlords to check criminal records.
The situation stems from a state appeals court decision more than three years ago, which industry experts say has barred background screeners and forensic investigators from using date of birth or driver’s license information to limit search results when investigating an individual’s criminal history.
The 2021 decision in All of Us or None of Us vs. Hamrick arose out of a case brought by a longtime criminal justice reform advocate who contended that background checks discriminated against previously incarcerated people.
A panel at the 4th Circuit Court of Appeals ruled that a Riverside County Superior Court website, which allows users to enter their date of birth and driver’s license number when searching for criminal records, violated state court rules that say the information must be redacted. from an “index” of courts accessible to the public through “electronic tools.”
“After considering the text, history, and purpose” of the rule, the justices found that state courts should limit the search criteria to the public, effectively eliminating the use of birth dates and license numbers.
Such personal identifiers have long been used to match individuals with their records, and without them, it would be nearly impossible to conduct searches that include common names, industry experts say.
“This is an interpretation that we’ve never seen or seen before,” said Melissa Sorenson, executive director of the Professional Background Screening Assn. “Every court is trying to figure out how to comply.”
It’s too late in Los Angeles County, where background check companies receive about 100,000 screening requests a month.
“Right now, LA County is an unsustainable example,” Sorenson said.
Residents with common names or those with a long history in the area may have to wait months or even years for background checks to be completed, Sorensen said, if they can be completed at all.
It will take time for the court to adjust since the 2021 appeal verdict is handed down. Los Angeles Superior Court announcing his changes in February.
“All background screeners can do a plug in Jose Rodriguez, for example, and because it’s a relatively common name in LA, you can get back hundreds to thousands of results,” Sorenson said. “We have no way to filter based on other identifiers.”
The date of birth is on the physical court file, the Los Angeles Superior Court said.
“These restrictions require background checkers looking for information on publicly named individuals to visit the courthouse where the physical court files are located to determine whether the information obtained in the electronic criminal records search applies to the person in question,” the court said. in email.
The court limits the number of small files it will take for a plea to five days in the courthouse. For names with thousands of results, it is impractical to check each physical file.
At the Clara Shortridge Foltz Criminal Justice Center, the county’s busiest criminal justice office, an additional court service assistant has been assigned to assist with file viewing requests. The current wait time to pull multiple files at once is three to five days, the court said.
In a message seen by The Times, background screening company Sterling sent a notice to clients explaining the situation earlier this year.
“With this change, the LA County courts have significantly more challenges to accurately identify individuals during background checks,” the firm said. “Delays for criminal investigations in LA County are expected to increase. … Some searches are closed because they are not feasible.
Sterling did not respond to a request for comment. On the online forum Reddit, a resident of Los Angeles shared concerns the background check they did not get done in time.
“Sterling can’t finish!” one user wrote. “Seriously worried and have been unemployed for a month now,” said another.
In 2022, Governor Gavin Newsom veto Senate Bill 1262which would allow forensic investigators to use birth dates to search for individuals without making the date publicly available.
“This bill would overturn a 2021 appeals court decision and current court rules that strike a fair balance between public access to court records, public safety, and the individual’s constitutional right to privacy,” Newsom wrote after closing the bill.
The nonprofit Legal Services for Detainees with Children pushed for the veto, arguing that the bill is “sponsored by a commercial background check company …
Eric Sapp, a staff attorney at the Oakland-based organization, pointed out that while background checks are mandated and required by law, local authorities must provide relevant information and ensure compliance.
“There is no need for background check companies to intervene in these situations,” he said.
“We believe that background checks are used and often ineffective for the purpose for which they are used,” he said. “Criminal background checks as they exist today may not be the model for the future.”
Joshua Kim, the lead attorney for the plaintiff in the Hamrick case, said he was not aware of the holdups with housing and job applications – but said such problems would be the fault of the background check industry, not the court’s compliance with the law.
“If there is in fact a delay that affects people’s opportunities for housing and employment because of the background check of the company’s inability to do the job, then that can potentially create more legal responsibilities for them,” he said.
Thirty-seven states have adopted what’s known as a “ban the box” policy that prohibits investigating a job candidate’s conviction history before making a job offer, but many employers still seek vets, especially for jobs that require vulnerable work. population or involve access to sensitive data.
“The fundamental question we ask in the reentry legal community is whether background checks are effective at screening dangerous employees,” Kim said.
But some Angelenos are already frustrated with the current situation.
South Pasadena mother Erin Chang has been stuck waiting months for her disabled son’s summer camp aide to be approved for work. Background checks must be cleared in order for the state to cover the assistant’s costs, Chang said.
Even though the check was cleared before the camp started, Chang had to pay the assistant and said he would seek compensation.
“Camp ends next week, and we’re still not done yet,” Chang said. “They gave me an explanation that they had a common name and there was a backlog.”
Outside of Los Angeles, other counties are making similar changes to comply with court rules. San Luis Obispo County announced last month that it has redacted access to date of birth and driver’s license information in the court search engine, and Orange County is rumored to make the same move soon, said Sorenson of the background check trade group.
“This is more of an LA County issue,” he said. “If an employer has a candidate with a California history, they should probably move on to another candidate.”
