States with Additional Procedures for Consumer Reports
The federal Fair Credit Reporting Act (FCRA) governs the use of consumer reports for the purposes of conducting background checks and making judgments regarding individuals’ character based on their credit behavior. The FCRA explicitly states the circumstances under which potential employers can use credit reports for employment purposes. Other types of information come under the banner of consumer reports as well, some of which employers use as a matter of routine.
Most states follow the dictates of the FCRA, providing a measure of uniformity regarding the types of consumer reports that potential employers can use and the ways they may use the information they discover. Eight states impose stricter standards, however. Those states are California, Maine, Massachusetts, Minnesota, New Jersey, New York, Oklahoma, and Washington.
As of January 1, 2012, employers must make written disclosure to job candidates that they may seek a consumer report before offering employment. That disclosure must state the purposes for which the information will be used and that the report may reflect aspects of the job candidate’s character and private aspects of his life. The written disclosure also must include the name and contact information of the agency conducting the investigative consumer report.
Maine’s requirements focus less on disclosure to potential employees, and more on how investigating agencies are to regard information the consumer says is false. They also must report voluntary account closings, and dates of any delinquencies. Investigative agencies must notify individuals of any negative information found.
Massachusetts implemented changes in employer use of criminal offender record information (CORI) in 2010. Full implementation of changes in state law went into effect May 4, 2012. Unless a specific job must be filled with someone with no criminal history, employers now cannot ask applicants about that part of their lives on a general employment application. Any employer desiring to ask an applicant about his criminal history must already have a written report in hand. If an applicant is turned down on the basis of criminal history, the employer must provide the applicant with a copy of the report.
Applicants must give specific permission for an employer to conduct a background check using consumer reports. That permission must be included with the application for employment. The applicant must have the option of receiving a copy of the report. If he or she does request a copy, the individual or outside third party preparing the report must send the individual’s copy within 24 hours of providing the report to the potential employer.
New Jersey restricts who may request a background check, but it accepts requests from anyone within or outside of New Jersey when the purpose is for employment or volunteer work. The state police make two screening options available. One of those options results in the report being mailed to the applicant. When an employer chooses the other option, results are mailed to the potential employer.
Article 23-A of the New York State Corrections Law dictates how potential employers may use the information gained through employment background checks when criminal history is discovered. Any company with 10 or more employees cannot deny employment to an individual simply because he or she has a criminal history. There are two exceptions. One is if the job would be in an area related to the nature of the earlier criminal offense. The other is if there would be unreasonable risk to specific groups of people or to the general public.
Oklahoma law requires that applicants and employees receive written notice that the employer will request a consumer report on the individual. The company also has to offer the individual the option of receiving a copy of the final report. For applicants, response is on the application. In all cases, the copy sent to the individual must be free of charge to the individual.
The Washington Human Rights Commission requires that employers impose conditions on the criminal histories of individuals. The Commission discourages the use of criminal history at all, but state law allows the use of employment background checks. It does require that employers consider only those offenses that have occurred within the past 10 years, and it does not allow employers to consider any criminal offenses that do not have any direct relationship to the job that the individual may be hired to do.