Is California law regulating the background-check industry constitutional?

Landlords and employers increasingly rely on background-check companies to provide them with criminal history and other sensitive information about prospective tenants and employees. But this industry, which is less visible and less regulated than the traditional credit bureaus, routinely skirts state and federal fair-credit-reporting laws, with grave consequences for those who seek jobs and housing.

The district court in this case struck down California’s state law governing the background-check industry, holding that the law was unconstitutionally “vague” because it overlapped with a different state fair-credit-reporting law and the court couldn’t figure out which one applied.

Public Good joined and edited a brief authored by the East Bay Community Law Center (and signed by other groups including the National Consumer Law Center and the ACLU).  The brief points out that the district court’s ruling would nullify essential state and federal consumer protections that govern the sale of criminal background-check information to private landlords and employers, and that have for decades struck a careful balance between protecting consumers’ privacy and ensuring that landlords and employers receive reliable and relevant information. By voiding these protections and the mechanisms to enforce them, the district court’s ruling increases the likelihood of inaccurate and overbroad background checks, and reduced opportunities for successful community reintegration for people with criminal records who have served their sentences and transformed their lives. This outcome, the brief argues, will harm the consumers who will be unfairly denied jobs and housing, and their communities that will suffer the consequences of underemployment, homelessness, and the resulting decrease in public safety.

No. 12-57246 (9th Cir.)