Background Checks

The Impact of Date of Birth Redaction Rules for Employers

In an effort to protect the privacy of individuals, many courts have ruled that redacting the date of birth on criminal records is required. In California, Rule 2.50 makes it mandatory that such personally identifiable information (PII) must be removed from all records. In Michigan, a similar rule went into effect in 2022. Wyoming also has a date of birth redaction rule in effect since 2018. PII in these states (and others) is unavailable in any court documents that are maintained online.

The logic behind these laws is to protect private information. The fallout from these laws can be significant for business. Comprehensive background checks have become necessary for all businesses. To safeguard their company, employees and the public, organizations must have as much information as possible about potential hires. Removing the date of birth from court records makes it difficult for businesses to fully vet a candidate’s criminal history, potentially putting their company at risk.

Why PII matters

When conducting a background check, the more information, the better. Determining whether a candidate is who they say they are requires a complete look at their history. Personally identifiable information allows business to navigate to the right candidate’s information, rather than others with the same name. Under the federal Fair Credit Reporting Act (FCRA), criminal records cannot be matched based on name alone, there are too many opportunities for error.

Businesses are allowed to ask for date of birth on employment applications for legitimate purposes, such as establishing eligibility to work. While organizations may have the name and birth date available for their background check, date of birth redaction laws and practices can make it impossible to match a specific candidate definitively to their criminal history.

California recently amended it’s birth date redaction policy: prior to February of 2024, partial DOB information, including the month and year of birth was available, making it somewhat easier to find criminal records. After February, all DOB information is redacted.

In some instances, businesses may petition county court offices for information, but this process can be slow and unreliable.  Some court offices require appointments and fees in order to request information. Others limit the amount of time allowed to search or the amount of searches that can be performed.

The fallout of redaction laws

Matching candidates to their background in some states may rely solely on partial information: in some areas, data can be obtained with a name and partial birth date information, such as the year or month. In other areas, records are inaccessible. Businesses in these jurisdictions can expect background checks will take longer than normal; will likely cost more; may be incomplete or impossible to obtain.

For organizations that are required by law to conduct comprehensive background checks, these laws may be prohibitive. The fallout may not just be for business: for individuals seeking employment, an inability to verify there is no history of significant criminal activity, such as murder, rape, theft or arson, could mean the difference between getting a job and getting passed over.

Working under date of birth redaction rules

If you do business in a state that has date of birth redaction rules, you’re aware of the challenges these laws pose. However, these court decisions may be adopted, or similar laws, may be mandated in other states and jurisdictions around the country. Being aware of the law, and preparing for it being imposed where you do business, may be critical for businesses to mitigate risk. Some ways to protect your business, whether or not DOB redaction rules apply, include:

  • Update your search criteria to include national criminal databases. These records are generally pre-redaction rules and have the ability to cross-reference to local cases.
  • Switch searches to felonies, omitting misdemeanor offenses. This may scale back the amount of potential cases sought, particularly if its required to petition the courts for records. A narrower search may accelerate response time.
  • Verify all dates of employment, looking specifically for unaccounted gaps in employment. These may indicate time incarcerated or under house arrest. Ask candidates to explain any large gaps on their application, and look for any misrepresentations of length of employment on applications or resumes.
  • If job-related, search for motor vehicle records to eliminate any driving-related felony or misdemeanor offenses.
  • Require pre-employment drug testing, where allowed by law. In states where medicinal or recreational drug use is allowed, limit results to non-legal substances. This may suggest a past history of drug use, and potentially associated criminal offenses.
  • When verifying job information with a candidate’s past employer, consider asking if they are aware of any felony convictions for the applicant. They may not respond, but it’s worth the inquiry.

It’s important to remember that in most states, it’s illegal to ask about criminal history in the early stages of the hiring process. Businesses may only ask about or investigate criminal records after a conditional offer of employment has been made. If a conviction is uncovered, the conviction may only be considered depending on the date and nature of the crime, and its relation to the work being performed. Most laws require a case-by-case analysis before an employment offer is rescinded. Many require an appeal option, by the candidate, before the matter is completely closed.

While date of birth redaction laws may make it more difficult to fully vet a candidate, there are ways to work within these laws and still protect your organization. Some patience and a few more steps may be required to minimize risk to your company and personnel.

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