Criminal Background Check
Criminal Background Check Rules by State
Since the terrorist attacks of 2001, employers have increasingly relied on criminal background checks to screen potential hires and vet current employees for promotion or retention. This created several problems. The most glaring was uncovered in the National Consumer Law Center’s report “Broken Records,” which found mismatched identities and violations of the FCRA to be regular occurrences. Rapid growth in the number of background check agencies and continuing problems has led states to pass legislation both monitoring and expanding upon FCRA requirements.
A social problem is also connected to the use of criminal background checks. The inability of one in four Americans to gain employment due to criminal records puts a substantial burden on society, which is best seen by the high rate of recidivism. The FCRA does not limit reporting of past convictions, but most other adverse information is limited to seven years. Some states have imposed extra restrictions on criminal reporting. Some have also banned employers from asking applicants about criminal convictions on applications and restricted the use of criminal information.
Combining State Regulations with FCRA
The federal FCRA regulations lay out a procedure for employers to obtain and use background checks of all types. States cannot make regulations that violate the provisions in the FCRA, but they are currently allowed to expand on them. City and county governments can likewise expand on state regulations without violating them. It is the duty of each employer to follow all applicable regulations.
Several states have expanded on the FCRA-only limitation regarding criminal checks. Specifically, the FCRA bars reporting criminal information, other than convictions, older than seven years unless the potential employee will make more than $75,000 a year.
- New York takes this further by banning the reporting of criminal convictions older than seven years for potential hires who will make less than $25,000 a year.
- Excepting specific professions, such as nursing home director, California prohibits reporting convictions older than seven years.
- Massachusetts forbids reporting of convictions older than five years unless there is a conviction within the last five years. Certain first offenses cannot be used by employers, including public drunkenness and disturbing the peace.
- Vermont only allows access to the conviction record after a person has been hired or offered a position.
“Ban the Box” and State Screening Standards
Several states and municipal districts have passed regulations banning the inclusion of a self-reporting box on employment applications regarding criminal history. These include California, Hawaii, Connecticut, New Mexico, Nebraska, and others as of 2010. Additionally, several states require employers to only consider information directly related to the job.
Hawaii, for instance, requires that adverse actions require the conviction record to have a “rational relationship” to the applied for position. Minnesota uses the term “directly related,” New York requires a “direct relationship,” and Wisconsin only allows use of criminal records that are “substantially related” to the desired position. Pennsylvania only requires that the conviction record “relate” to the job. Some of these states mandate rehabilitation be strongly considered by employers before taking adverse action. They include New York, Connecticut and Minnesota as of 2010.
Non-pending Arrests, Pending Arrests, and Sex Offender Lists
A non-pending arrest refers to one that has been settled. This means the defendant or applicant was convicted, exonerated, put on pretrial diversion, or had their case adjudicated by other means. Pending arrests are those in which charges have been made, but there has been no resolution. Several states have provisions for dealing with both types of criminal records. Some also prohibit the use of sex offender lists.
- Rhode Island prohibits employers from inquiring into arrests or charges brought against the applicant.
- In Michigan, individuals are allowed to withhold information about any arrests that have not resulted in conviction except felony arrests that have not been adjudicated.
- Kentucky forbids the reporting of any criminal case not resulting in conviction.
- Ohio forbids the use of sealed records by attaching criminal penalties.
- California forbids employers from seeking information regarding arrests with no conviction, sealed or expunged records, and arrests resulting in successful pretrial diversion.
- California and Nevada forbid the use of sex offender lists for employment and many other purposes.
State regulations concerning the use of criminal checks for employment are growing in number. Municipal districts are also filling gaps in consumer protection through local ordinances. No state or county expansions on the FCRA have been successfully challenged in court. Research is essential because violation opens employers to civil lawsuits, fines from regulatory agencies, and criminal proceedings in some states.