California’s Background Check Limits Are Impeding Hiring

Legal developments in California limiting criminal history searches are causing significant hiring delays and unworkable burdens in the employment screening process.

The situation arose from a May 2021 California Court of Appeal decision in All of Us or None — Riverside Chapter v. Hamrick, which has prevented background screeners from using dates of birth or driver’s license numbers as input terms in electronic criminal record searches.

While the ruling was related to Riverside County, it is applicable statewide. California superior courts—county by county—have since been removing the date-of-birth search field from online portals and public-access terminals in courthouses, severely restricting background checks, especially for those with common names.

Surprisingly, even regulated industries such as finance, insurance, and health care—where background checks are required—are restricted from using dates of birth in electronic searches.

“A background check is dependent on personal identifiers,” said Melissa Sorenson, executive director of the Professional Background Screening Association (PBSA). “Using first and last name alone can return hundreds or thousands of results. That’s why screeners filter those results using personal identifiers like date of birth.”

Katie Hartley, vice president of client solutions at Accurate Background, a screening firm in Irvine, Calif., said screeners previously relied heavily on the date-of-birth identifier to narrow search results, especially for people with common names.

“Los Angeles County has been hit particularly hard by these changes,” she said. “With a high volume of background check requests and a large population with common names, the delays can be substantial. This can leave people waiting weeks or months for background checks to clear, stalling job applications.”

The Superior Court of Los Angeles County removed month-and-year-of-birth access earlier this year, while courts across the state have, to various degrees, implemented limitations following the Hamrick ruling.

“Some courts are more willing than others to try to find work-arounds,” said Rory Bogdon, public records access director at PBSA. “Some are more restrictive. The ultimate result is that the background screening process in particularly high-volume jurisdictions is taking significantly longer and most notably for people with common names.” 

Some counties allow businesses to petition county court offices for information, while others limit the amount of time allowed to search or the number of searches that can be performed.

In-person records searches are allowed in Los Angeles County but are limited to five records per day per researcher, making background checks for people with common names effectively impossible, said Spencer Waldron, a partner with Fisher Phillips in Irvine, Calif.  

It’s estimated that there are over 100,000 employment screens requested per month in Los Angeles County, where the new restrictions will greatly impact those with Hispanic surnames, he said.

“It’s had a tremendous impact on certain populations, where backlogs are growing,” Bogdon said. “Checks that used to take two or three days now take months or longer to get through the process.”

The Hamrick case was brought by a civil rights organization advocating for people with criminal histories, but Bogdon countered that being able to access identifying information on public records—with the consent of the applicants—does not violate any fair chance hiring or clean slate laws.  

“We’re not looking to gain access to any records we shouldn’t see,” Bogdon said. “The background check has been consented to by the applicant, and they have provided their personal information specifically for this purpose. The screener already has the date-of-birth information and just needs to input the identifier and get back records where they match.”

The PBSA took action following the 2021 ruling, including introducing legislation in 2022 that would have allowed screeners to use date of birth to search for a record without making the date publicly available. The bipartisan bill passed both chambers of the California legislature before Gov. Gavin Newsom vetoed it.

Meanwhile, background check delays continue to worsen throughout the state, creating significant challenges for employers and job seekers alike.

“Employers are frustrated,” Waldron said. “They still think it’s an important process, especially for certain roles and in certain sectors, but it’s been difficult to hire people and do due diligence. Some have become more selective about doing background checks. Many have lost candidates along the way because the process has taken so long.”

Where possible, some employers have begun making contingent job offers while the process plays out, Sorenson said, but that is not always an option.

“Employers are very confused as to how to handle the situation,” she said. “Many simply cannot wait weeks or months for a background check to complete. Employers are in an impossible position trying to fill open roles with limited or no tools to complete a background check, including for positions that have access to minors and other vulnerable populations.”

Hartley advised employers to be aware of the potential delays and factor them into their hiring timeline.

“Employers must adjust their hiring screening processes to account for the longer wait times. Educate your candidates on the potential delays and what might be behind it,” she said.

Waldron said that employers should continue to work with their legal counsel and background check companies to perform due diligence as best they can when hiring and screening candidates in California.