In May 2021, a California court decision in All of Us or None v. Hamrick, created significant angst among employers seeking to do background checks for employees in that state. As SHRM reported: “The gist of the decision was that background check companies could no longer verify key personal identifying information for criminal defendants in state court index searches commonly used for background checks, such as full date of birth, because the California Court of Appeal held that the information must be treated as private.”
Advocacy groups such as the Professional Background Screening Association (PBSA), stepped up to challenge the ruling, with Senate Bill 1262 attempting to address the issue. Ultimately, though, California’s Governor Gavin Newsom vetoed the bill.
Redaction Challenges Ability to Conduct Accurate Background Search
California isn’t the only state where the redaction of personal data is causing problems for employers. Michigan has taken similar steps although PBSA reports that: “In a sign of continuing improvements, we are seeing backlogs being reduced I most Michigan courts.” This has occurred as clerks improved their response times while also implementing new procedures and systems.
In Michigan, personally identifiable information includes: date of birth, Social Security or national identification number, driver’s license number, and financial account numbers.
The problem, of course, is without the ability to accurately verify if a record relates to a specific candidate—through date of birth (DOB), for instance — employers can’t be certain they are making appropriate decisions about hiring, or not hiring, specific individuals.
The Fair Credit Reporting Act (FCRA), requires such matches to be done through personal identifiers like DOB to ensure accuracy. Without the ability to use these identifiers, reports can’t be generated. That has resulted in concerns from employers and the PBSA.
At issue: when courts redact—or remove—personally identifiable information, such as DOB, employers can’t ensure accuracy when reviewing these records. Consider how many people named John Smith might live in the state of California, for instance. Narrowing down that pool of potential John Smiths requires the use of additional personal information to ensure that a record belongs to the candidate you’re considering.
Employees suffer as well. The inability for employers to accurately determine who an applicant is — or isn’t — and whether court records relate to them or someone else with the same name, can hinder opportunities to get hired.
Attempts to make this information accessible to potential employers have included allowing individuals to allow authorized access. In Michigan, for instance, “The State Court Administrative Office (SCAO) maintains a list of individuals who are authorized to access a party’s date of birth in court records for the purposes of verifying identity, pursuant to MCR 1.109(D)(9)(b)(v)(B), without presenting a copy of the person’s written consent to the court.”
There are other workarounds suggests Jon Morgan, CEO of Venture Smarter. For instance:
- Using other methods of assessment. This might include competency-based interviews or assessments, skills tests, etc.
- Requesting relevant information directly from candidates.
Still, challenges remain and these workarounds are far from optimal for helping employers make informed decisions.
As more states and jurisdictions send signals that they, too, may seek to redact certain information from court records, employers need to advocate and educate.
Advocacy and Communication
Employers can also take part in advocacy efforts to prompt appropriate change, Morgan suggests. “Employers may proactively engage in advocacy efforts to raise their concerns with legislators, policymakers, and other stakeholders,” he says. “This may involve participating in industry associations, lobbying for changes to redaction laws, and communicating with relevant government agencies to seek clarifications or exemptions.”
It’s also important to educate both employees and candidates about these restrictions and their implications, Morgan says. “This may include providing training on data privacy and security, as well as clearly communicating the company’s policies and procedures regarding redacted information,” he says.
The protection of sensitive personal information is a reasonable expectation. But there are instances—like the hiring process—where reasonable workarounds need to be found.