On February 17, 2022, California Senator Steven Bradford (D-35th District) introduced Senate Bill 1272 (SB 1272), which calls for publicly accessible electronic indexes of defendants in criminal cases to enable searches and filtering of results based on a defendant's driver's license number or date of birth, or both. SB 1272 is intended to enhance transparency and public safety by making it easier for people to find out whether someone has been convicted of a crime.
The current process
In May 2021, the California Court of Appeals ruled in All of Us or None v. Hamrick that a DOB and driver's license number may not be used to identify an individual when searching a court's electronic criminal index, as these data cannot be used to authenticate the identification. The decision has forced all 58 trial courts in California to abide by.
In response to its decision, the Professional Background Screening Association (PBSA), a non-profit organization representing the background screening industry, and the Consumer Data Industry Association (CDIA) — the trade association for consumer reporting companies — wrote a joint letter to California's Supreme Court in July 2021.They expressed concern regarding the rule and how it will impact employers, consumers, the economy, and court clerks who do not have the resources to implement the rule.
Per the existing Bill
Existing law requires a clerk of the superior court to keep an index of any action or proceeding filed in the court. Existing law requires a separate index for plaintiffs and defendants in civil actions and defendants in criminal actions.
What could change
California Senate Bill 1271 would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering results based on a defendant's driver's license number, date of birth, or both.
Section 69842 of the Government Code would be amended to read:
"The clerk of the superior court shall keep indexes to ensure ready reference to any action or proceeding filed in the court. There shall be separate indexes of plaintiffs and defendants in civil actions and defendants in criminal actions. The name of each plaintiff and defendant shall be indexed, and there shall appear opposite each name indexed the number of the action or proceeding and the name or names of the adverse litigant or litigants. Publicly accessible electronic indexes of defendants in criminal cases shall permit searches and filtering of results based on a defendant's driver's license number, date of birth, or both."
Why this Matters
Verifying court records is an important stage in providing accurate background checks. The Federal Fair Credit Reporting Act (FCRA) requires consumer reporting agencies (CRAs) like Orange Tree to have "rigorous procedures" in place to guarantee that a reported public record is "complete and up to date." This is important so that employers are given timely, accurate information for their hiring process.
Background screening providers utilize the applicant's name, date of birth, or driver's license number to confirm that court records match the individual being searched. When this information is redacted, the following will occur:
- Issues identifying persons with common names
- Trouble confirming records
- Delay in hiring
Without this information the criminal history portion of a background screen will be delayed. Common names are especially impacted because there is no other readily available information to determine if a record belongs to your candidate. In these circumstances, background screening companies must request the full file from the court clerk and review all aspects in search of any other identifiers that are not on the public access terminal. Limitations on numbers of files that can be requested, coupled with limited clerk staffing can result in the delays being significant.
What's next for California?
California Senate Bill 1272 currently awaits committee referencing. Per the communication provided by the PBSA,
"Both the California Constitutional Rule as well as the Legislative Joint Rule 55 – requiring the Bill be in print 30 days before it can be acted upon by committee – have been suspended. This means the Bill can be heard in committee immediately once it is referenced, helping speed the process. More to follow once referencing is complete."
Orange Tree will continue to monitor this Bill and keep you updated as more information becomes available. In the meantime, if you have any questions about how this may impact your screening program, please schedule a call with us to help ensure your screening process is compliant with accurate criminal background information.
The foregoing is not legal advice, express or implied. We recommend you seek the advice of your own legal counsel for all aspects of employment law.