If this were a post-presidential debate fact-checking post, the claim that background checks cannot include criminal convictions older than seven years would be rated as “mostly false.”
While still commonly cited, the federal Fair Credit Reporting Act’s limitation on reporting criminal convictions older than seven years was removed from the law in 1996 – 20 years ago.
Under federal law, consumer reporting agencies (CRAs),
a term that includes employment background screening companies,
can report criminal convictions forever.
The seven-year reporting limit applies to most other items, including non-conviction criminal cases, unless the individual is expected to earn more than $75,000 annually.
But then it gets a little complicated. When the FCRA’s reporting limitations were modified in 1996, nine states had similar limitations reflected in their own laws.
Most of these states’ limitations only applied to employment paying less than $20,000 annually.
However, California, Montana, and New Mexico’s laws have no salary cap and thus would apply to all employment in the state.
The FCRA’s 1996 amendments allowed those nine states to keep their restrictions but prohibited all states from creating any additional reporting restrictions.
Despite the restriction on new reporting limits, Texas and Colorado both passed laws in 1997 prohibiting CRAs from reporting criminal convictions older than seven years.
These laws were preempted by federal law on the day they were passed.
I receive so many phone calls from Texas criminal defense and employment law attorneys challenging our reporting of convictions older than seven years that I finally created a two-page document outlining the history of the law.
Once I email that to them, I don’t hear from them again.
Some states, rather than try to address what
CRAs can report to employers, have placed limitations
on what employers can consider.
For instance, Hawaii and Washington both restrict employers to considering criminal records not older than ten years.
Other states limit the information available from certain sources, such as the state police agency’s criminal records database.
Most recently, some municipalities have created their own limitations.
For instance, San Francisco limits employers’ consideration of criminal convictions to those in the past seven years and Madison, Wisconsin limits consideration of convictions to three years!
This continues a recent trend of increased municipal regulation of employers’ use of criminal and credit history.
So what is an employer to do?
If the employer is located in only one city or state, compliance is probably fairly easy – if the employer understands the local law’s implications.
However, companies with employees in multiple states are often challenged in understanding what their screening company can and should report and what they can legally consider when making a hiring decision.
The obvious answer to that challenge is to work with Imperative, a background screening partner that understands the laws affecting both employers and CRAs and can advise employers on best practices to ensure a safe and effective workforce.
Identify Dangerous and Dishonest
Candidates Before Their First Day on the Job!
Employers who fail to conduct quality background checks often fail to identify their hiring mistakes until it is too late:
- The applicant doesn’t have the skills or behaviors necessary to successfully perform the job.
- The applicant takes advantage of the employer by committing an illegal act.
- Someone is injured because of the applicant’s negligence.
- The company’s relationships and reputation are damaged.
Often, problem employees linger for months or years, wasting the company’s money in management time, productivity losses, and litigation.
You can’t afford cheap employment background checks.
If you need accurate and thorough information that was hand-researched by trained professionals (located in the USA) rather than web-crawling bots or database algorithms, call us today to explore how we can improve your background screening process.