The California Court of Appeal has ruled that date of birth and/or a driver’s license number cannot be used to identify individuals in an electronic search of the criminal index of court records.  All of Us or None v. Hamrick.  This ruling complicates and further restricts how and even whether (from a practical standpoint) employers can conduct lawful background checks on job applicants and employees.

By ordering the Riverside Superior Court to remove birthdates and driver’s license numbers as data that can be used to identify individuals with a criminal record, the ability of employers (and others) to conduct criminal background checks will be further impeded if not made impossible.  With the use of only a first and last name to conduct the search, the search results of a particular applicant or employee may show the criminal history of perhaps dozens of other people with the same or a similar name.

The focal point of this case is California Rule of Court 2.507(c), which governs electronic access to court calendars, indexes and registers of actions:  In addition to driver’s license number and date of birth, Rule 2.507(c) requires the following data to be excluded from court calendars, indexes and registers of actions: (1) social security number; (2) financial information; (3) arrest warrant information; (4) search warrant information; (5) victim information; (6) witness information; (7) ethnicity; (8) age; (9) gender; and (10) government-issued identification card numbers.

Here, the question was whether members of the public using the Riverside Superior Court’s public website should be permitted to search the court’s electronic index by inputting an individual’s name as well as his/her date of birth and/or driver’s license number.  The Riverside Superior Court contended that it did not violate the rules because it did not disclose this information publicly, but rather allowed individuals who already possessed such information to use it as a data point to filter their search.

However, the Court of Appeal was not persuaded by the search versus disclosure distinction urged by the lower court.  Finding the Riverside Superior Court to be in violation of Rule 2.507(c), the Court concluded:  “In authorizing such searches, defendants may reasonably be said to have failed to ‘exclude’ … date of birth and driver’s license number in the Riverside Superior Court’s index as is required [by the Rule], even assuming that defendants are not disclosing this information.”

As a reminder and as covered previously here, California law already prohibits an employer with five or more employees from inquiring into or considering the conviction history of an applicant until after the applicant has received a conditional offer of employment.  The Fair Chance Act (Assembly Bill No. 1008), effective January 1, 2018, also prohibits such employers from considering, distributing, or disseminating information related to specified prior arrests, diversions, and convictions that have been sealed, dismissed, expunged, or statutorily eradicated when conducting a conviction history background check.

After making a conditional offer of employment, employers may conduct a criminal history check, but the law requires an individualized assessment—the nature and gravity of the criminal history, the time that has passed since the conviction, and the nature of the job held or sought.  If the employer decides the applicant’s criminal history is a basis upon which to rescind the offer of employment, the employer must notify the applicant in writing of the disqualifying conviction(s), provide a copy of the conviction history report, and give the applicant at least five business days to respond before the employer may make a final decision.

California employers should review their background check policies and consult with counsel to ensure they scrupulously comply with the individualized assessment and notice requirements of the law.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Michelle Lappen Michelle Lappen

Michelle Lappen is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She assists clients in a wide range of labor and employment matters in a variety of industries, including entertainment, financial services, and…

Michelle Lappen is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She assists clients in a wide range of labor and employment matters in a variety of industries, including entertainment, financial services, and technology.

Michelle earned her J.D. from Columbia Law School, where she was an articles and submissions editor for the Columbia Journal of Law & the Arts. During law school, she also was a teaching fellow for the Advanced Negotiation Workshop and advocated for state and federal legislation as a clinical student in the Columbia Law Health Justice Advocacy Clinic.