Significant delays in processing background checks have caused headaches across California, leaving job and housing applications in limbo and making it more difficult for employers and landlords to check criminal records.
The situation stems from a state appeals court ruling more than three years ago that industry experts say prohibited background checkers and court investigators from using birth dates or driver’s license information to narrow search results when investigating someone’s criminal history.
The 2021 decision, All of Us or None of Us vs. Hamrick, arose from a lawsuit brought by criminal justice reform advocates who have long argued that background checks discriminate against formerly incarcerated people.
A Fourth District Court of Appeals review panel found that a Riverside County Superior Court website that allows users to enter their date of birth or driver’s license number when searching criminal records violates state court rules that say such information should be excluded from court “indexes” accessible to the public through “electronic means.”
The justices found that “after considering the language, history and purpose” of the rule, state courts should limit the search criteria for the public, effectively precluding the use of dates of birth and driver’s license numbers.
Such personal identifiers have long been used to match individuals to their records, but without them, conducting searches that include common names has proven nearly impossible, industry experts said.
“This is an interpretation that nobody saw coming or expected,” said Melissa Sorenson, executive director of the Association for Professional Background Review. “Courts are evaluating how to comply.”
The delays are particularly bad in Los Angeles County, where background check companies receive about 100,000 requests each month.
“Right now, Los Angeles County is an example of how this is not sustainable,” Sorenson said.
Sorensen said residents with common names or who have lived in the area a long time could have to wait months or even years for background checks to be completed, or not knowing if they’ll be completed at all.
Courts have been slow to adapt since the 2021 appellate ruling was handed down. The Los Angeles Superior Court announced the changes in February.
“All a background screener can do is type in, say, Jose Rodriguez, and it could return hundreds or thousands of results because it’s a relatively common name in Los Angeles,” Sorenson said. “There’s no way to filter based on other identifiers.”
The Los Angeles Superior Court said the birth dates are listed within the actual court files.
“These restrictions require background investigators seeking information about people with common names to visit the courthouse where physical court files are kept to determine whether the information obtained in an electronic criminal record search applies to the person under investigation,” the court said in an email.
Courts limit the number of case files that can be searched for claimants to five per day in any court, and for names that have thousands of search results, physically reviewing each file is impractical.
At the Clara Shortridge Foltz Criminal Justice Center, the county’s busiest criminal clerk’s office, additional court service assistants have been deployed to handle file viewing requests, and the court said the current wait time to view multiple files at once is three to five days.
Background check company Sterling sent notices to customers earlier this year explaining the situation, according to messages reviewed by The Times.
“This change has made it significantly more difficult for Los Angeles County courts to accurately identify individuals during background checks,” the company said. “We expect delays in criminal investigations in Los Angeles County to increase. … Some investigations have been terminated as infeasible.”
Sterling did not respond to a request for comment.On the online forum Reddit, Los Angeles residents shared their concerns that background checks were not being completed on time.
“Sterling can’t do anything!” one user wrote. “Really anxious and already unemployed for a month,” another wrote.
In 2022, Gov. Gavin Newsom vetoed Senate Bill 1262, which would have allowed court investigators to use birth dates to search individuals without releasing their birth dates.
“This bill would invalidate a 2021 Court of Appeals decision and current court rules that strike a fair balance between public access to court records, public safety, and individuals’ constitutional privacy rights,” Gov. Newsom wrote after rejecting the bill.
The nonprofit group Legal Services for Prisoners with Children called for a veto, arguing that the bill is “sponsored by commercial background check companies and has no regard for the interests of formerly incarcerated or convicted people.”
Eric Sapp, the Oakland-based group’s staff attorney, said when background checks are permitted and required by law, local authorities have an obligation to provide relevant information and ensure compliance.
“There’s no need for a background check company to get involved in these situations,” he said.
“We believe background checks are overused and often fail to serve their intended purpose,” he said. “Criminal background checks as they are currently conducted may not be a viable model in the near future.”
Joshua Kim, lead attorney for the plaintiffs in the Hamrick lawsuit, said he was not aware of any delays in housing or job applications but that any such problems were the fault of the background check industry, not the courts following the law.
“If background check companies are unable to do their jobs and there are delays that actually impact people’s housing and employment opportunities, that could create new legal liability for them,” he said.
Thirty-seven states have adopted what are known as “ban the box” policies that prohibit checking a job applicant’s criminal conviction history before making an offer of employment, but many employers still require screening of job applicants, especially for jobs that require working with vulnerable populations or that involve access to sensitive data.
“A fundamental question that reentry law experts have been asking is whether background checks are effective at weeding out dangerous employees,” Kim said.
But some Los Angeles residents are unhappy with the current situation.
Erin Chang, a South Pasadena mother, said she waited months to get approval for a job as a summer camp aide for her disabled son, who had to pass a background check before the state would cover the costs.
The check was cleared just before the camp was due to start, but Chan said she plans to seek a refund because she had to pay for the assistive devices out of her own pocket.
“The camp ends next week and nothing has been decided yet,” Chan said. “They explained that she has a common name and that there has been a backlog of applications.”
Outside of Los Angeles, other counties are making similar changes to comply with court rules: San Luis Obispo County announced last month that it would remove access to birthdates and driver’s license information from its court search engine, and Orange County is rumored to be following suit soon, said Sorenson, of the background check industry group.
“This isn’t just an issue in Los Angeles County,” she said. “If employers have candidates from California, they may have to switch to another candidate.”