Whether you’re conducting background checks nationwide or in your own hometown, state laws can affect the way you screen your applicants. To avoid frustration, it is vital that all employers understand the limitations imposed on consumer reporting agencies (CRAs) by applicable state law.
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Let’s start with the good news- Twenty nine states along with the District of Columbia do not impose any additional restrictions above and beyond the requirement imposed by the FCRA . If you are an employer in any of the following states and you are hiring people strictly from your state you can breathe a sigh of relief: Alabama, Arizona, Arkansas, Connecticut, Delaware, DC, Florida, Idaho, Indiana, Iowa, Louisiana, Maine, Mississippi, Missouri, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.
For employers in the remaining states, things are a bit more complicated. States have imposed restrictions in the following ways:
Some states have enacted laws that require additional disclosure language in addition to what is mandated in the FCRA. If you live in one of these following states additional procedural laws will pertain to you: California, Georgia, Illinois, Minnesota, New York and Oklahoma.
Reporting cases that did not result in a conviction
Criminal record information often includes instances where a person has been charged, but not convicted of a crime. Charges may have been withdrawn or the individual may have been found not guilty. Eight states have restricted the use of this information in a background report. The majority of these states include an exception that the information is reportable if the case is still pending. These types of restrictions are found in the following states: Alaska, California, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, and New York.
The use of older cases
Whereas the FCRA does not allow the use of any non-convictions older than seven years, several states go further and ban the use of any case older than seven years, even in instances when there was a conviction. Twelve states place restrictions on the reporting of ANY case information older than seven years. These types of restrictions are found in the following states: California, Colorado*, Kansas*, Maryland*, Massachusetts (additional limitations are put on the reporting of misdemeanor offenses), Montana, Nevada, New Hampshire*, New York *, Texas *and Washington*.
(* indicates exceptions based on salary.)
Using convictions to disqualify applicants from positions
Some state lawmakers have passed legislation reflective of the EEOC’s guidelines that require employers to justify how an individual’s criminal record would be detrimental to his/ability to perform a specific job. Employers should be aware of restrictions in the states of: Hawaii, New York, Pennsylvania, and Wisconsin.
Ban the Box
So called “Ban the Box” legislation is on the rise. Several states have passed laws against asking about an applicant’s criminal record on job applications. In these states, hiring managers must wait until at least the first job interview to inquire about an individual’s criminal history. Currently four states (Hawaii, Massachusetts, Minnesota, and Rhode Island) along with four major cities (Newark, Philadelphia, Seattle, and Buffalo) have passed Ban the Box legislation. Several other states are looking to pass similar legislation in the near future.
Some other state laws that pertain to background checks include: restrictions on the use of the sex offender registry (California & Nevada), marijuana convictions over two years old (California), and certain “first offense” cases (Georgia & Massachusetts).
Employers should be aware that CRAs are limited in what they are legally permitted to report. Federal and state laws restrict the availability of information that may be used for hiring purposes. A partnership with Justifacts can help you navigate the complexities of these different legislations and assist you in making the most informed hiring decision possible.
It is important to note that Justifacts is providing this information as a service to our clients. None of the information contained herein should be construed as legal advice, nor is Justifacts engaged to provide legal advice. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult your attorney or legal department if you want assurance that our information, and your interpretation of it, is appropriate to your particular situation.