Navigating California’s Complex Employment Landscape: Recent Developments in Background Checks and Privacy

Topics: Court Decisions, Employee Hiring, Discipline & Termination, Personnel Policies and Procedures, Workplace Privacy

Employers in California face significant challenges when it comes to accessing public records for background checks, particularly concerning criminal history and motor vehicle records. California’s employment laws are constantly evolving, and a recent court decision may expand an employer’s ability to access a potential employee’s motor vehicle records. 

Motor Vehicle Record Checks and Privacy Concerns

For positions requiring employees to drive as part of their job responsibilities, motor vehicle record checks are essential for employers in assessing a candidate’s suitability and compliance with safety standards. A recent case, Doe v. California Dept. of Motor Vehicles (June 21, 2024), examined whether employees’ privacy interests were infringed by the DMV’s practice of disclosing Administrative Per Se or “APS” suspensions to employers. An APS suspension of a driver’s license commonly occurs when a person refuses to submit to chemical testing or drives with a blood-alcohol concentration above the specified threshold. APS suspensions are administrative because they result from an independent determination by the DMV, regardless of whether the driver ultimately received a criminal conviction for the conduct that led to the APS suspension. 

Generally, employers are not allowed to consider an applicant’s non-conviction arrest information in hiring decisions under California’s current privacy and employment laws. Though initially challenged on privacy grounds, the court in Doe v. California Dept. of Motor Vehicles ultimately ruled that disclosing reasons for APS suspensions does not violate California’s privacy laws related to non-conviction arrest information, as revealing the reason for suspension merely discloses the result of an independent administrative adjudication (even though an arrest led to the license suspension). This decision marks a notable shift that benefits employers seeking transparency in candidate evaluations. Under this ruling, employers will be able to legally review and consider not only APS suspensions of applicants, but also the reasons for the APS suspensions, allowing employers to make more informed hiring decisions. 

Implications for Employers

This area of the law is ever-changing, requiring ongoing attention and adaptation by employers. The following are practical steps employers can take to enhance compliance and streamline hiring processes:

1. Review and Update Policies: Regularly update job applications, workplace postings, and company communications to align with fair chance hiring practices and questions currently permitted by law.
    
2. Training Initiatives: Provide thorough training for recruiters, interviewers, and personnel handling background checks. Ensure they understand permissible inquiries into criminal history and the correct procedures for managing sensitive information. For more information on permissible inquiries into criminal history by employers, see this related blog post: “BEWARE: New Requirements for How California Employers May Consider Criminal History In Employment Go Into Effect On October 1, 2023.”
    
3. Compliance Audits: Conduct routine audits of hiring procedures to ensure alignment with federal, state, and local laws. This includes reviewing the stage of the hiring process in which background checks are permitted, distributing mandatory notices to candidates, and adhering to applicable deferral periods for criminal histories disputed by candidates.

Conclusion

Navigating California’s regulatory environment for background checks requires proactive compliance strategies and remaining current with recent legal developments. Employers can mitigate risks and maintain fair and effective hiring practices by staying informed and implementing robust policies. Contact your favorite CDF attorney for guidance on these issues.