How The New State Rulings Restricting DoB Information Can Stall Your Hiring Process

The two little-known state Supreme Court rulings could negatively affect your ability to hire

As if the pandemic wasn’t enough to throw a wrench in your hiring plans, there is another threat: new state Supreme Court rulings limiting access to date of birth (DOB) information.

Two states—California and Michigan—now have court rules designed to remove dates of birth from public court records, which can slow down employers' efforts to conduct background checks and fill open positions.
 

Here’s what you need to know about how these new court rulings can impact your ability to hire, and what you can do about it.

What Are the DOB Court Rulings in California and Michigan?

In an effort to protect citizens from identity theft and other unauthorized use of personal information, the Michigan Supreme Court ruled that personal identifying information (PII), such as social security numbers, financial account numbers, driver’s license numbers, and dates of birth, would be excluded from public court records, effective July 2021. 

In addition, a California Court of Appeals judge recently interpreted an existing ruling to mean that date of birth could not be provided or confirmed. 

Several employers, background screening companies, and the Professional Background Screening Association (PBSA) have written to the Michigan and California courts. They point out that redacting date of birth information will slow down hiring and background check processes, possibly preventing a candidate from being hired. Why? Because names are not sufficient identifiers when conducting public record searches. 

For example, a background screening company searching thousands of court records for criminal records for John Smith needs to narrow the search with a better identifier: date of birth. If the screening company can’t confirm his DOB with the court, John Smith’s background check results could be held up for weeks or longer.

Citing the need to give courts the time to implement the new ruling, and perhaps in response to the overwhelming reaction from employers and others, the Michigan Supreme Court agreed to delay the effective date of its ruling from July 2021 to January 2022. In California, petitions to the state Supreme Court remain ongoing. However, both states have several courts already imposing the rulings, which has caused delays in background screenings. 

For companies hiring in those states, it’s time to consider the potential impact on your hiring and background screening processes.

How the New DOB Rulings Affect Your Hiring Process 

According to a recent PBSA and HR.com survey, most organizations (94 percent) conduct some type of background check during the hiring process. Background checks help your organization manage hiring risk and protect the workplace from individuals who might cause harm to others. Unfortunately, by limiting the information available in public records, the new DOB rulings in Michigan and California can threaten your ability to carry out background checks consistently across all applicants.

It’s also important to note that the rulings can do more than just cause a delay in the hiring process—they can also prevent a candidate from being hired. For example, employers in industries, such as healthcare, transportation, and others are required by law to conduct background checks on prospective hires. 

If they can’t complete a criminal background check for a candidate, they can’t lawfully hire the candidate. As Melissa Sorenson, PBSA Executive Director, points out, “[The Michigan ruling] is going to end up harming a number of people, particularly Michigan consumers looking for work.”

As these rulings potentially increase the time to hire for employers, they can also negatively impact the candidate experience. Candidates with a history in California or Michigan could be rejected in favor of individuals, who do not reside or have a history in states where access to public records is severely limited. 

What Your Organization Can Do to Prepare

At a time when more and more companies are hiring remote employees, sometimes across state lines, there is a chance your organization may eventually need to hire a candidate from Michigan, California, or any other state that passes similar legislation in the future. 

As a result, it’s critical to examine your hiring and background screening processes now, and determine the actions you can take to mitigate potential future risks created by these rulings.

Consider taking the following actions:
 

• If your organization is located in a state with new or proposed DOB laws, write to your state court and government representatives. 
• Contact the PBSA to inform them that your company hires in those states.
• Put a process in place for notifying candidates about the potential for delays in specific locations.
• Consider possible hiring contingencies you may need to implement in the event of location-specific hiring delays, for example, utilizing temps and contract staff.
• Ask your background check company about the processes it has in place to navigate county and state court systems, and whether there are possible workarounds to address court delays.

Although the new DOB rulings in California and Michigan don’t yet represent a national trend, they can still create hiring delays and lead your organization to potentially lose a good candidate. By taking steps now to address the impact of these rulings on your hiring and screening processes, you can limit your risk and be better prepared if similar rulings or laws are passed in other states.

As Vice President of Production, Todd Feher oversees the production of all Corporate Screening background check solutions, from database searches to investigations, verifications, and public records research. He is a member of the Professional Background Screening Association (PBSA) and holds degrees in Business Administration and Security and Loss Prevention.