On November 14 of 2014, California voters approved Prop 47 which, among other things, required the reclassification of the following THEFT and DRUG RELATED crimes from felonies to misdemeanors:
Receiving/Concealing Stolen Property (value not to exceed $950)
Simple Possession of Heroin, Cocaine, Listed Controlled Substances
Simple Possession of Concentrated Cannabis, Methamphetamine, Ecstasy
Simple Possession of the “Date Rape Drug” GHB
In response to this legislation, the Los Angeles County Sheriff’s Department and many others around the state have been effectively citing and releasing these offenders back into the community while awaiting their court date. While this is troubling for many reasons, the Sheriff’s Department has cited two major concerns. First, these individuals may continue to commit additional crimes while waiting for their court date and second, the jail population will eventually increase as the cases are adjudicated.
To add to the concerns of law enforcement, employers who are required by the State of California to utilize the Live Scan system to background check potential employees should be aware of another potential implication. When law enforcement cites and releases an offender who has not had their fingerprints collected, the Live Scan process may very well fail to identify these individuals with convictions because the Live Scan system relies on the fingerprints of the applicant to search for records.
According to the Attorney General’s website for the State of California: “The California Department of Justice (DOJ) is mandated to maintain the statewide criminal record repository for the State of California. In this capacity, sheriff, police and probation departments, district attorney offices, and courts submit arrest and corresponding disposition information. The DOJ uses this information to compile records of arrest and prosecution, known as “RAP sheets,” for individuals and disseminates the information for law enforcement and regulatory (employment and licensing) purposes. RAP sheets are based upon fingerprint submissions, and therefore positively identified biometrically; a process by which a person’s unique identity is confirmed.”
Interestingly enough, a potentially unintended consequence of Prop 47 may be the reduction of the reliability of a Live Scan background check. In the Prop 47 era, a caregiver who was hired to care for your elderly parent or vulnerable child may have been convicted of Grand Theft, Possession of Methamphetamine, or Check Forgery and cleared for work inside your home or long term care facility by the State of California.
As an employer, you may find it indispensable to utilize a private background checking company in addition to Live Scan in a good faith effort to meet the due diligence requirement in the hiring and management of employees who will be trusted with the care and safety of others. A private background checking company will rely on completely different methods to obtain records and will report their findings to you quickly and inexpensively allowing you to make better informed decisions.
Matthew J. Rodgers, PHR
Advanced FCRA Certified Expert