Criminal Records Check & FCRA Compliance

How far back is a criminal records check reportable?

Human Resource Professionals are tasked with many challenging responsibilities including how to make the best possible hires for their organizations.  They have to take into consideration a number of factors including their culture, core values and ensure that the candidate’s skill set meets and hopefully surpasses the organizational requirements.  Once all of those hurdles are met and the background investigations process is initiated, the challenges soon begin! The rules of employment can be very challenging as there are many pitfalls to avoid, including adhering to the proper application process, avoiding lawsuits and knowing what is and is not reportable following a criminal records check.

Making sure who you hire is the right fit is extremely important. The stakes are high because if a previously convicted criminal causes harm to a fellow employee, the employer can be held partially responsible. However, denying an individual a job opportunity solely based on his or her criminal records check can also lead to the employer being sued for discrimination. As a general rule in the background investigations process, convictions can be used against individuals in the hiring process only if certain factors apply. To learn more about those factors, download our whitepaper by clicking here!

What is the first step in navigating the hiring process? Understanding the rules!  Let’s start with the candidate’s application. As you probably have heard, there is a movement to ban the box that questions applicants if they’ve ever been arrested or had a criminal conviction. The presence of this box depends on state, city, county, etc.  Their reasoning is that the box is discriminatory towards certain groups.  Also, the job market is getting more and more competitive and silly mistakes of the past could ruin a person’s chances of getting hired. Banning the box allows the potential employee to better showcase his or her qualifications as opposed to the employer only focusing on the negatives.  If the box is banned, it’s important to know that the employer will always be able to do a background check for past convictions, it just pushes this step to a later part in the hiring process.

As you get closer to hiring a potential candidate for employment, it’s important to know the rules pertaining to criminal records checks. Let’s start with the FCRA. As we know, the FCRA (Fair Credit Reporting Act) governs consumer reports, which include credit reports as well as background investigative reports.  The state in which a candidate resides has an impact on the FCRA on a state level. What may be reportable in one particular instance may not be reportable in another, depending on the circumstances of the conviction.

These circumstances include whether the conviction happened a certain amount of years ago. If the conviction happened too long ago, it may not be used.  Take a look at some of the state by state requirements:

• All States follow the Federal FCRA regulations and 36 states do not have restrictions beyond the FCRA Laws. You can report all criminal convictions without timeframe restrictions with the following exceptions:
  • Bankruptcies can’t be reported after 10 years
  • Civil Suits & Civil Judgements can’t be reported after 7 years
  • Records of Arrest can’t be reported after 7 years
  • Paid Tax Liens can’t be recorded after 7 years
  • All negative information (except for criminal convictions) can’t be recorded after 7 years

• The following States have Restrictions Beyond the Federal FCRA Laws:
  • Criminal Convictions:
    • 12 States can only report convictions back 7 years based on the disposition date (see chart for details)
    • Hawaii & Illinois can report convictions back 10 years backed on the disposition date

• Salary Exemptions: In some states, convictions, no matter how hold, may be reported if the applicant is expected to earn a certain salary when hired.
  • Colorado and Texas: expected salary – $75,000 or more
  • New York: expected salary – $25,000 or more
  • New Hampshire and Washington: expected salary – $20,000 or more

• Non-Convictions: In California, New York & Kentucky, non-convictions can’t be reported at all, regardless of age, except for pending charges.

When it comes to conducting criminal background checks, knowledge is key. Knowing when in the hiring process to ask the question about criminal convictions and how far back your state requires for time reporting restrictions can keep your company from a lawsuit. At the end of the day, good judgment and commonsense are paramount however it never hurts to be well versed in the complicated rules of the hiring process.