For many employers and job seekers, there is a glimmer of light in this endless Covid-19 tunnel. While the pandemic continues to ebb and flow, businesses are opening up, employers are hiring again, and vaccines are widely available in many countries.

The new delta variant is hampering plans to fully re-open. Even though the unemployment rate in the U.S. was steadily declining, a recent uptick in jobless claims was unexpected. Millions of Americans are looking for jobs, and employers are desperate to fill positions. Unfortunately, a disturbing trend in state and local courts is threatening to make hiring and maintaining safe workplaces even more difficult.
 

This year, we have seen two state court systems, California and Michigan, implement or interpret rules to indicate they will not longer provide dates of birth (DOBs) when releasing their records. The result? Background screening will be nearly impossible in California and Michigan. Since 94% of employers conduct background screening, these rules will be and already are proving devastating to hiring.

Removing DOBs from criminal records makes it extraordinarily difficult, if not impossible, for professional background screeners to determine whether a criminal record belongs to a particular individual, especially when the individual has a common name.

These rules make it impossible for background screeners to provide employers with a definitive report since the courts will only be able to provide the criminal records for every single person with the name of the candidate in question. Determining whether it is the right individual without DOB is not just challenging and time-consuming, in many cases it will not be possible.

For many employers, particularly if they are hiring for a position that works with vulnerable populations or sensitive information, a background check is more than just a “nice to have”, it is legally required.

Essentially, removing dates of birth from court records will eliminate the chances for residents or former residents in that state to be hired in any number of positions, including in health care, childcare, schools, research universities, finance, and more.

For many court systems implementing these rules, they are doing so to protect privacy by removing personally identifiable information from public records. However, that argument is flawed. Protecting privacy is incredibly important, but 47 of the 48 states with data breach notification legislation do not classify DOB as an identifier that, if breached, would require notification.

Further, individuals who are being screened have already provided their DOB to the background screener. Employers often choose to utilize professional background screeners when conducting background checks because they are trained to properly handle personally identifiable information, and are subject to strict regulations under the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act of 2003.

These rule are already having significant negative impacts on hiring and workplace safety. As we work with the courts and legislatures to address these issues we need your help. Employers are a key messenger that the courts and legislative bodies will listen to. Please take a moment to learn more about how you can help reverse these damaging interpretations by visiting our webpage dedicated to these issues.

Author Bio

Melissa Sorenson is the Executive Director for the Professional Background Screening Association (PBSA), whose mission is to advance excellence in the screening profession. Prior to working for PBSA, Melissa worked in the backgrund screening industry for 7 and a half years working in a compliance and legal role and volunteering with PBSA. Visit https://thepbsa.org/ Connect Melissa Sorenson

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