Privacy Concerns Spur States to Redact Dates of Birth from Records

As part of a trend toward increased privacy protections, courts in some jurisdictions are removing date of birth (DOB) information from public court records. This can impact background screening companies’ ability to verify that the record belongs to the right person. At GoodHire, we’ve taken steps to keep these changes from hindering our customers’ hiring plans.  

Keep reading to learn why DOB redaction policies are becoming more common and what it means for the background screening process. 

New Laws Restrict Date of Birth (DOB) Data   

In recent years, consumers have become more concerned with protecting access to their personal data. Businesses have responded by giving customers more control of how their data is used and shared. Now some state courts, too, are placing limitations on how personal identifiable information (PII) is displayed and who can access it. 

For example, several California counties have already implemented rules that prevent the public from accessing DOBs when checking records at both online portals and public access terminals inside courthouses. Instead, DOB verifications must be done in person at the courthouse, typically with the assistance of the county clerk. In Michigan, a rule redacting DOB information from court records is set to take effect on January 1, 2022. In Virginia, some courts provide only partial dates of birth, such as month and day only, or year only. And some counties in Kansas and South Carolina only return year of birth information in county check results.

While these efforts are well-meaning, with a laudable goal of protecting consumer privacy, they’ve unintentionally made it more difficult to conduct background checks, which are used in the hiring process by 94% of organizations nationwide. 

Organizations conduct background checks to protect employees and customers, improve the quality of hire, and comply with screening mandates. Nearly all employers include a nationwide criminal database search and 85% of organizations conduct statewide, county, regional/local searches for all or some candidates in their criminal background screening, according to a survey by the Professional Background Screening Association (PBSA). 

In this blog, we’ll take a closer look at:

• How date of birth information is used in background checks
• How DOB redaction policies affect screening providers’ abilities to access criminal court records, and how organizations who use background checks for employment purposes may be impacted, and
• How GoodHire is adapting its processes to continue to deliver reliable background checks in jurisdictions where DOB redaction policies are in place.

How Are Birth Dates Used in Background Checks?

Why is a candidate’s birth date so important to the background check process? Under the Fair Credit Reporting Act (FCRA), consumer reporting agencies (CRAs) are prohibited from linking criminal records to individuals based solely on a matching name. Since fewer than 1% of court records contain Social Security numbers, CRAs typically use other personal identifiers, such as DOB, to confirm a match. But without access to a DOB, verifying that court records belong to a specific individual is difficult, especially if the person has a common name. (Imagine searching for the court records of a James Smith—the most common name in the US—in any major city without using a birth date.) 

How DOB Redaction Policies Affect CRAs & Employers

DOB redactions can make it harder for screeners to confirm that criminal records belong to the right person. Screening companies will have to get creative, using identifiers other than DOB, or in some cases visit courthouses in person. These additional steps can slow the background check process, and may lead to underreporting of criminal records, potentially exposing employers to liability. Even if your state doesn’t redact DOB from court records, your background checks could be affected whenever you screen a job applicant who has lived in one of those states. 

Because of the negative effect on background screenings created by these changes, the PBSA is among the organizations vigorously fighting PII redaction trends, and GoodHire supports these efforts. However, with recent changes in the US privacy landscape enhancing protections of individuals’ personal data, the trend is unlikely to reverse. In fact, employers should be prepared for other states or counties to pass similar regulations. 

How GoodHire is Approaching the Situation

GoodHire’s advanced platform and data process workflows are highly adaptable, and we’ve already taken steps to adapt to changing state policies. Our many years of background screening expertise, deep relationships and innovative technology have helped us develop alternative measures to offset the loss of DOB in jurisdictions with redaction policies. This ensures we can continue to deliver accurate background screening reports for you. 

We’re actively monitoring this situation and will continue to keep you informed about new developments affecting the use of PII, as well as what we’re doing to adapt to them. 

What Should Employers Do?

There are steps you can take to help prevent DOB redactions from delaying your background screenings, whether you use GoodHire or not. These include: 

• Start running background checks earlier in the hiring process to account for delays, where allowed by law. This is especially important in jurisdictions that require in-court verification of DOB before releasing the records. Be sure to consider any ban the box laws that may affect your ability to run a background check prior to making a conditional offer to the candidate.
• Collect middle names from both job applicants and current employees. A middle name helps background check providers distinguish between otherwise identical James Smiths born in July 1990 living in Cook County, IL, for example.
• Be aware of the legal requirements CRAs are navigating. In some jurisdictions, your background check provider may not be legally able to provide as much data as previously. 

Being prepared, staying informed and having GoodHire on your team can help ensure that DOB redactions aren’t a roadblock to hiring for your organization. 

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About the Author

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Elizabeth McLean is GoodHire’s General Counsel, an FCRA-compliance attorney and expert in the background screening legal landscape. She monitors all things FCRA and EEOC. That means she follows new legislation and court decisions and advises the company on processes that follow compliance best practices.