Connor v. First Student

California Supreme Court Case no. (2018) 5 Cal.5th 1026

Connor arose in the context of a coordinated action in which 1200 school bus drivers sued their employers for running unlawful background checks on them without their notice or consent.  It is an important case for two reasons.

First, Connor upheld the constitutionality of California’s Investigative Consumer Reporting Agencies Act (ICRAA) (Cal. Civ. Code, §§ 1786.1-1786.6), and, by extension, California’s Consumer Credit Reporting Agencies Act (CCRAA) (Cal. Civ. Code, §§ 1785.1-1785.6).  ICRAA and CCRAA govern background check reports and provide critical protections to California’s employees, tenants, and consumers.

In 2007, a case called Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal. App. 4th 604, held that ICRAA and CCRAA were unconstitutionally vague as applied to tenant screening reports.  A groundswell of cases following Ortiz applied its holding to employment-related background checks.

Fortunately, the attorneys at Hunter Pyle Law and their co-counsel successfully challenged the holding in Ortiz and prevailed.  Now that ICRAA’s constitutionality has been resolved, California’s employees, tenants, and consumers will enjoy the strongest background check protections in the country.

Second, Connor rejected the defendants’ argument that the overlap between the ICRAA and the CCRAA rendered those statutes constitutionally invalid.  That argument was accepted by OrtizSee Ortiz, 157 Cal. App. 4th at 619.

If the Supreme Court had adopted the Ortiz void for vagueness analysis, many different laws that overlap would have been at risk. Examples of such overlapping laws include employment laws (see Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338); criminal laws (see United States v. Batchelder (1979) 442 U.S. 114, 115-116); environmental laws (see Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783; commercial laws (see United States v. Borden (1939) 308 U.S. 188, 198); and agricultural laws (see Ruckelshaus v. Monsanto Co. (1984) 467 U.S. 986.)

Fortunately, the Supreme Court rejected the Ortiz analysis.  See Connor, 5 Cal.5th at  1034.  (“If we conclude that ICRAA and CCRAA are sufficiently clear to indicate that both apply to Connor’s background report, neither statute is vague. (Cf. United States v. Batchelder (1979) 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 [That “particular conduct may violate both Titles does not detract from the notice afforded by each”].)  Thus, Connor establishes an important rule of statutory construction:  that two laws are not unconstitutional merely because they overlap.  Or, as someone once said, “There is no ‘vague for overlap’ rule.”

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