Jennifer: We are back once again with Curt Schwall, EBI’s Vice President of Compliance, to talk about what is going on with the date of birth redactions in some parts of the country. Curt, it’s great to see you again.
Curt: Hi Jen, Great to see you.
Jennifer: I know this is a very complicated and detailed subject, but let’s start us off with just a brief explanation of what we’re seeing in California and Michigan right now.
Curt: Yeah well, let’s start with California because now we are beginning to see operational complications with the DOB redactions in California. As a result of an appellate court decision in a case called all or none of us versus Samuel Hamrick, the courts ruled that dates of birth cannot be inputted as a search mechanism or search tool in the public record searching process. And so, court clerks have begun removing from public access terminals the ability for court researchers to input dates of birth, which are the primary identifier in criminal records. Court clerks are helping in a large number of County jurisdictions, but they are simply overwhelmed with the number of requests.
So, some counties are limiting the number of searches that can be performed with clerk assistance, and that is really beginning to cause significant delays in California County criminal record searches. In the Michigan matter, we continue to work with the state court administrator’s office in Michigan. They have scheduled DOBs to be redacted beginning on January first of 2022 and also promoting an alternative of the Michigan statewide criminal record system, which is called iChat.
There are a couple of really notable issues with the Michigan AI chat system. One, it lacks pending case information. So, you can imagine if you’re recruiting for a position and you find out that the person has a pending assault case or some other serious type of event, you would want to know that as a prospective employer, that will essentially be lost if employers are required to use the iChat system instead of the County system.
Jennifer: Are we already seeing this affecting our clients in any way?
Curt: Well, in California, we’re starting to see delays and that’s going to frustrate employers. We absolutely understand the importance of time in the recruiting process. Employers need to fill positions. We are finding ourselves, unfortunately, at the mercy of the courts and the court clerks and their ability to verify information. We expect at some point that some searches may simply not be able to be completed because of this lack of access to identify our information.
Jennifer: So, what happens if you have a situation where you may have a federally mandated background check in order to hire somebody, yet you can’t get the information? What do you do?
Curt: Well, that’s a great question because many of our clients are regulated, so they have to perform criminal record searches. And what to do if you can’t complete it? You know, at this point in California, we’re really headed to a name-only background check, and we know that for anybody, particularly with a common name, that without an identifier, you’re just not going to be able to identify that individual.
Jennifer: All right, tell me if I’m really off base on this, you can just tell me I’m completely wrong, but the Michigan situation, they’re going to help CRAs find those records, but for a fee. Is this nothing more than a money grab at that point, or is it deeper?
Curt: It could be. It could be. So, I think it depends on the jurisdiction involved. And so some counties in Michigan charge a fee. Others do not. Some may see it as a revenue source. Others may not view it the same way. But I think the overarching concern here is just the quality of the information. Certainly, that money may end up in one place versus another, but I think the overarching concern here is the depth and the quality of the criminal background check. There will be unintended consequences for those who are forced to use the Michigan statewide system versus the County system or the County record. The counties simply have the most in-depth, the most current, and the most accurate information available.
Jennifer: The California one really baffles me on some levels, because it sounds like they’re almost going to take all the dates of birth out of their systems. So how do you even run a criminal justice system? If you can’t figure out that this John Smith, who’s been arrested, hasn’t been arrested five times before, like, is that going to completely destroy their criminal justice system?
Curt: It could. And, you know, I spoke of unintended consequences. We’re going to see increased security incidents in the workplace. We’ll see increased theft. We’ll see increased damage to company reputations, all because we can’t adequately screen individuals in California. Should this continue to proceed down the road, it’s proceeding right now.
Jennifer: I want to back up one quickly and ask you. In Michigan, we’re looking at this January 1 deadline for it to go statewide. Do you expect that to happen? Have you seen movement on pushing back on this?
Curt: Well, we have a task force within the Professional Background Screening Association, and I’m fortunate enough to participate in that task force. We are working very, very hard on trying to persuade the Michigan judiciary to change the rule.
I would like to note that there is a petition that Michigan employers can sign, and we will be making that petition web address available to you. And we encourage all employers to review that petition, and we certainly would encourage them to sign on to it
Jennifer: Are you hearing rumblings of similar things happening in other states or is it just California and Michigan right now?
Curt: Our ears are very close to the ground. You know, rumblings here and there. But one of the things that we need to accomplish. And we’re working very hard on is to raise awareness that date of birth is not a gateway to identity theft. And so all of this is borne from protecting data, and we support that as holders of personal identifier information, we feel it’s incredibly important to protect an individual’s personal information. However, dates of birth are not gateways to identity theft. And also importantly, I want to point out that we, when we search public records, are not looking to discover a date of birth. What we’re looking to do is match a date of birth that we have already been provided by the individual with their authorization. And so, we seek to validate that against a public record. And so that’s an important distinction here, is that we’re not trying to develop personal information from a file. We’re looking to match it. And so, when you combine those two factors that we’re trying to match it and it’s not a gateway to identity theft, unlike a social security number, for example, I think a reasonable person can get to a perspective that it’s wise it’s right to preserve access to dates of birth.
Jennifer: Any final advice to give to employers right now as we work through this?
Curt: Have your voice heard. PBSA has a petition that you can sign in the Michigan situation to address that situation. Stay tuned for initiatives regarding California, but we really need the employer’s voice to be heard, and you can reach out to me at Compliance@EBIINC.com for ways that you can help, and I can put you in touch with the right people to also join our efforts. And so, I look forward to engaging more with the employer community and getting their support and their engagement. It’s a very, very, very important initiative to preserve the integrity of background checks, the accuracy of background checks, and the completeness of background checks.
Jennifer: All right, Curt, thank you so much for filling us in on this, I’m sure we’ll talk about it again soon.
Curt: All right. Thanks, Jen.
Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.