On July 15, 2021, a diverse group of trade associations and businesses, all with a keen interest in protecting the public, signed on to an amicus letter to the California Supreme Court asking the Court to reverse a lower court decision that, if left standing, would render most employment in the state severely delayed, and in many instances, they will no longer be possible at all. The amicus effort was led by the Consumer Data Industry Association (CDIA) and the Professional Background Screening Association (PBSA). On July 22, CDIA and PBSA filed a supplemental amicus with 13 additional businesses and associations.
On May 26, 2021, the California Court of Appeals, 4th A.D (starting from Riverside County), calls for the removal of significant identifiers (date of birth or driver’s license number) from criminal records:
After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.
The case, All of Us or None of Us v. Hamrick, has had and will have a significant impact on employers, housing providers, and the general public in California. The decision removes date of birth and driver’s license numbers as data identifying criminal defendants.
Signing on to the July 15, 2021 amicus letter is 22 organizations, including CDIA and PBSA: California Bankers Association, California Chamber of Commerce, California Credit Union League, California Financial Services Association, Checkr, Inc., Coalition for Sensible Public Records Access, Electronic Security Association, Lyft, Inc., Moco Incorporated, National Consumer Reporting, Association, National Public Records Research Association, Public Records Retrieval Network, Security Industry Association, Southern California Rental Housing Association, Sue Weaver CAUSE: Commit to Always Using Screened Employees, The Monitoring Association, Tribal Gaming, Protection Network, Uber Technologies, Inc., Vector Security, Inc., Western Burglar Alarm and Fire Alarm Association.
Signing on to the July 22, 2021. amicus letter is an additional 13 organizations: Apartment Association of Orange County, BRB Publications, LLC, California Alarm Association, California Association of Boutique & Breakfast Inns, California Hospital Association, California Hotel & Lodging Association, California Rental Housing Association, California State Council of the Society for Human Resources Management, Hospitality Santa Barbara, Hotel Association of Los Angeles, Long Beach Hospitality Alliance, Public Record Retriever Network, Western Burglar and Fire Alarm Association Unilateral Apprenticeship and Training Program.
On July 22, 2021, the Plaintiff-Appellants filed an application to the California Supreme Court asking for leave to respond to the CDIA/PBSA coordinated joint amicus along with a proposed response.
On August 13, 2021, CDIA and PBSA filed another letter with the California Supreme Court urging, again, the Court to take All of Us or None of Us by highlighting the practical, real-world implications of the Court of Appeal’s mistaken holding. The appellate court’s decision is already having disastrous consequences—namely, the collapse of meaningful criminal background screenings in California and enormous obstacles in getting people into jobs in virtually every sector of the economy. In the ensuing weeks since the opinion was issued, CDIA and PSA’s worst apprehensions are rapidly being realized, as superior courts in counties across California have begun removing search fields from their websites, most notably fields that permit filtering by date of birth.
In its August 13 filing with the California Supreme Court, CDIA and PBSA provided the Court with a list of the California superior courts that have removed date-of-birth search fields from their websites and/or public access terminals in the wake of the Court of Appeal’s decision in Hamrick. The data indicate that: (1) More than half the state’s population—22.3 million Californians—currently live in a county whose superior court has removed the date-of-birth filter from its online search engine, thus severely restricting the availability of meaningful criminal background checks in that county; and (2) More than 43% of Californians currently live in a county that has eliminated the date-of-birth filter entirely—not only online, but even at the public access terminals at the courthouse.
As anticipated in CDIA and PBSA’s July 15, 2021 amicus letter to the Court (followed up with the July 22, 2021. amicus letter), lawful background check activity is crippled in these 11 jurisdictions, which in turn is causing massive delays in getting people hired and working. Amici anticipate that many more—and perhaps all—superior courts in California will take similar action in the next several months. Amici therefore respectfully ask the Court to take these additional data points into account as it considers whether to grant review of the Court of Appeal’s decision.
On August 18, the Court offered some potentially encouraging news. The Court granted itself an extra 30 days to consider the petition. While this minor time adjustment could well turn out be no more than a meaningless symptom of the Court’s heavy caseload, we are hopeful that it could signal we have gotten sufficient attention to warrant the case being discussed in the justices’ conference, as opposed to the summary denial the is the fate of most petitions for review. The Court’s new deadline to decide whether to take up Hamrick is now September 30, although it is possible a ruling could come sooner.
The case is All of Us or None of Us, Riverside Chapter v. Hamrick, Cal. S.Ct., No. 269654. Hamrick is the clerk of the Riverside County Superior Court. CDIA and PBSA are represented by HudsonCook (Rebecca Kuehn and Jennifer Sarvardi) and TroutmanPepper (Elizabeth Holt Andrews). In the intermediate appellate court, the case is All of Us or None of Us, Riverside Chapter v. Hamrick, Cal. 4th A.D., Div. 1, No. D076524.
Additional reading about this case is available at: California Court of Appeal Ruling Could Severely Restrict Employment Background Checks (JacksonLewis).
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More