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. State laws and background checks vary from state to state. Let’s start with the good news.
Twenty-nine states along with the District of Columbia do not enforce any additional restrictions above and beyond the requirement imposed by the FCRA. In fact, 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. These states include: 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. These states have introduced restrictions in the following ways:
Some states have enacted laws that require additional disclosure language, more than what is mandated in the FCRA. If you live in one of these following states, extra 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 Charges may have been withdrawn or the individual may have been found not guilty.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 limitations are found in the following states: Alaska, California, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, and New York.
The Use of Older Cases
The Fair Credit Reporting Act does not allow the use of any non-convictions older than seven years. Although, several states go further and ban the use of any case older than seven years. Even on occasions when there was a conviction. Twelve states place restrictions on the reporting of ANY case information older than seven years. You will find these types of restrictions in the following states: California, Colorado*, Kansas*, Maryland*, Massachusetts**, Montana, Nevada, New Hampshire*, New York *, Texas *and Washington*.
(*indicates exceptions based on salary)
(**additional limitations on the reporting of misdemeanor offenses for Massachusetts)
Using Convictions to Disqualify Applicants From Positions
Some state lawmakers have passed legislation reflective of the EEOC’s guidelines. These states require employers to justify how an individual’s criminal record would be hurtful to his/her ability to perform a specific job. Employers should be aware of restrictions in the states of Hawaii, New York, Pennsylvania, and Wisconsin.
Equally, the 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 light of these states, hiring managers must wait until the first job interview to inquire about an individual’s criminal history. Currently, four states along with four major cities have passed “Ban-the-Box” legislation. These states and cities include Hawaii, Massachusetts, Minnesota, Rhode Island, the city of Newark, Philadelphia, Seattle, and Buffalo. Several other states are looking to pass similar legislation in the near future.
Referring to some other state laws and background checks, there are limitations 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 Federal and State laws restrict the availability of information CRAs report for hiring purposes. A partnership with Justifacts can help you navigate the complexities of this different legislation. We will assist you in making the most educated 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. 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.
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