Governor's Veto Will Result in Delayed Background Checks in California

​A May 2021 court decision in California, called All of Us or None v. Hamrick, caused significant background check delays in some California county courts and left background check companies unable to report some criminal record search results at all. 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.

Due to the vigorous advocacy efforts of several organizations, including the Professional Background Screening Association (PBSA), an industry group comprising employment and other background check companies, the California Legislature passed Senate Bill 1262, aimed at rectifying the problem caused by the Hamrick decision. On Sept. 13, the Legislature presented the bill to Gov. Gavin Newsom for signature.  At the end of the legislative session, however, the governor vetoed the bill.

The bill was drafted as a short amendment to California Government Code § 69842. It proposed to add one sentence and change one clause to that law. But the bill was expected to have a large impact by restoring the ability of background check companies to more readily match the personally identifying information they need to report criminal records to employers.

Section 69842 already requires the clerk of the Superior Court to maintain indexes to ensure ready reference to any action or proceeding filed in court. Specifically, the bill proposed to mandate that "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 or date of birth, or both." This new language would have ensured background check companies would have had the ability to provide driver's license or date of birth information they already had on file to the court index to confirm if a case matched those identifiers. This ability was substantially impacted by Hamrick.

The governor's office posted a message regarding the veto of the bill, which was passed by a unanimous Senate vote of 37-0 and was passed by a vote of 53-9 in the Assembly. The upshot for now is that employers will have to continue to work with their recruiting teams, legal counsel, and background check companies to determine the best options for vetting California candidates, given the ongoing climate post-Hamrick.

Rod M. Fliegel is an attorney with Littler in San Francisco. William J. Simmons and Wendy Buckingham are attorneys with Littler in Philadelphia. © 2022. All rights reserved. Reprinted with permission.