Significant delays in the processing of background checks are causing headaches across California, leaving applications for jobs and housing stuck in limbo while making it harder for employers and landlords to screen for criminal records.
The situation stems from a state appellate court ruling more than three years ago, which industry experts say has blocked background screeners and any court researcher from using date of birth or driver’s license information to narrow down search results as they investigate an individual’s criminal history.
The 2021 decision in All of Us or None of Us vs. Hamrick arose from a case brought by criminal justice reform advocates who have long argued that background checks lead to discrimination against formerly incarcerated people.
A panel at the 4th District Court of Appeals determined that Riverside County’s Superior Court website, which allowed users to input dates of birth and driver’s license numbers while searching for criminal records, was in violation of a state court rule that says such information should be excluded from court “indexes” accessible to the public through “electronic means.”
“After considering the text, history, and purpose” of the rule, the judges found that state courts should limit search criteria for the public, effectively eliminating the use of birth dates and license numbers.
Those personal identifiers had long been used to match individuals to their records, and without them it has proved nearly impossible to conduct searches that involve common names, industry experts say.
“This was an interpretation that no one had ever seen before or seen coming,” said Melissa Sorenson, executive director of the Professional Background Screening Assn. “Each of the courts is trying to figure out how to comply.”
Delays are particularly bad in Los Angeles County, where background check firms receive about 100,000 screening requests each month.
“Right now, L.A. County is an example of something that’s not sustainable,” Sorenson said.
Residents with common names or those with a long history in the area may have to wait for months or even years for their background check to be completed, Sorensen said, if it’s possible for it to be completed at all.
It has taken time for courts to adjust since the 2021 appellate ruling was handed down. The Superior Court of Los Angeles announced its changes in February.
“All the background screener can do is plug in Jose Rodriguez, for example, and because it’s a relatively common name in L.A., you could get back hundreds to thousands of results,” Sorenson said. “We have no way to filter based on any other identifier.”
Dates of birth are contained within physical court files, the Superior Court of Los Angeles said.
“These restrictions require background checkers seeking information on commonly named individuals to visit the courthouse where the physical court file is located to determine if the information they obtained in an electronic criminal record search applies to the person about whom they are inquiring,” the court said in an email.
The court limits the number of case files it will retrieve for a requester to five per day at any courthouse. For names with thousands of results, it’s not practical to check each physical file.
At the Clara Shortridge Foltz Criminal Justice Center, the county’s busiest criminal clerk’s office, additional court service assistants have been assigned to assist with file viewing requests. The current wait time to pull multiple files at a time is three to five days, the court said.
In a message reviewed by The Times, the background screening firm Sterling sent out a notice to clients explaining the situation earlier this year.
“With this change, the L.A. County court has made it significantly more challenging to accurately identify individuals during background checks,” the firm said. “Delays for criminal checks in L.A. County are expected to increase. … Some searches were closed as unperformable.”
Sterling did not respond to a request for comment. On the online forum Reddit, Los Angeles residents shared concerns that their background checks were not getting completed in time.
“Sterling is not able to get it done!” one user wrote. “Seriously anxious and have been unemployed for a month now,” said another.
In 2022, Gov. Gavin Newsom vetoed Senate Bill 1262, which would have allowed court researchers to use date of birth to search for an individual without making the date publicly available.
“This bill would override a 2021 appellate court decision and current court rules that strike a fair balance between public access to court records, public safety, and an individual’s constitutional right to privacy,” Newsom wrote after shutting down the bill.
The nonprofit Legal Services for Prisoners with Children pushed for the veto, arguing the bill “was sponsored by commercial background check companies … with no regard for the interests of formerly incarcerated or convicted people.”
Eric Sapp, a staff attorney at the Oakland-based organization, pointed out that when background checks are authorized and required by law, local authorities are obligated to provide the relevant information and assure compliance.
“There’s no need for a background check company to intervene in those circumstances,” he said.
“We definitely believe that background checks are overused and are often useless for the purposes for which they’re used,” he said. “The criminal background check as it currently exists today might not be a viable model in the near future.”
Joshua Kim, lead attorney for the plaintiffs in the Hamrick case, said he wasn’t aware of holdups with housing and job applications — but said any such issues would be the fault of the background check industry, not the courts complying with the law.
“If there is in fact a delay that affects people’s opportunity for housing and employment because of the background check company’s inability to do their job, then that could potentially create another legal liability for them,” he said.
Thirty-seven states have adopted what is known as a “ban the box” policy that prohibits investigation into a job candidate’s conviction history before making an offer of employment, but many employers still seek to vet candidates, especially for jobs that require working with vulnerable populations or involve access to sensitive data.
“The fundamental question that we’ve been asking in the reentry law community is whether background checks are effective in screening out dangerous employees,” Kim said.
But some Angelenos have been frustrated by the current state of affairs.
South Pasadena mother Erin Chang had been stuck waiting months for her disabled son’s summer camp aide to get approved for work. The background check had to clear in order for the state to cover the cost of the aide, Chang said.
Although the check cleared just before camp began, Chang had to pay out of pocket for the aide and said she will seek reimbursement.
“Camp is over next week, and we’re still not sorted out,” Chang said. “They offered the explanation that she had a common name and that there is a backlog.”
Outside Los Angeles, other counties are making similar changes to comply with the court rules. San Luis Obispo County announced last month that it is redacting access to date of birth and driver’s license information in court search engines, and Orange County is rumored to be making the same move soon, said Sorenson of the background check trade group.
“It is more than just an L.A. County issue,” she said. “If an employer has a candidate with California history, they may have to move on to a different candidate.”
