State Laws and Background Checks: What you need to know

State laws background checks
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:

Procedural Requirements

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 Charges may have been withdrawn or the individual may have been found not guilty.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.

Additional restrictions

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).

Conclusion

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.

Comments

Caleb 14-02-2014, 12:14

Though there are limitations in many areas across the country, it is important that we still allow background screenings for all potential applicants. It is important knowledge that those hiring should be informed and have access to. Though it should not determine whether they are hired or not, but it is useful knowledge for creating a safe and efficient work environment.

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Belac 21-10-2015, 17:48

I totally disagree with the “useful knowledge” angle. For the individual who has been living without incident or any type of arrest 7 years since conviction a background check past 7 years does a disservice… ESPECIALLY if it is a non-violent felony.
The person seeking employment shouldn’t have to endure extra scrutiny after he or she has paid their “debt to society” and show no recent (within last 7yrs) threat to a “safe and efficient” work environment.

The background check SHOULD go past 7 years if there has been any recent arrest or conviction (if the charge is violent involving a person or harm or theft to a persons property).

Reply
Chandra 22-05-2016, 23:56

I have been a contributing member of society for 15 years. I graduated summa cum laud with a BA in business administration and just graduated in the top 3 of my LPN class for nursing. Now, I’m facing the scrutiny of the board for some things I did over 15 years ago (drug charge on a deferred judgment, etc ). I understand the need to know about one’s background, but I think 10 years of qualitative evidence to prove one’s dedication to the ‘right ‘ path should be enough. Though rare, people DO change. And I think 7 to 10 years of expressing that change is enough. I’m tired of fighting this battle. I’m a good person and it’s not fair to hold against me things that happened (in extenuating circumstances ) over a decade ago, against me today. Nor is it ok to do that to any other person trying to better themselves and those around them. I guess I should have gone to law school.

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Shannon 05-10-2016, 08:52

Walmart keeps doing this to me. It’s been over 8 1/2 years since I made the one criminal mistake that I’ve made in my life and yet they keep making me job offers and taking them away once that one thing shows up on my background check. I am always up front with employers about that charge. It’s pretty sad that I can work for the United states Army as a civilian employee and work for the USPS but yet my background isn’t clean enough to get a part time job at Walmart retail locations or full time at their warehouse locations.

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Kyle 05-10-2016, 19:54

Chandra,

I’m in the same situation. I have a criminal mischief first degree felony for vandalism of a public building. I committed the offense when I was 17 and three months later the DA charged me as an adult and threw the book at me. This was 15 years ago. Since then I have joined the United States Marine Corps and have been enlisted for 9 years with a secret security clearance. I have a bachelor’s degree in science and I’ve finished one year of grad school for my MBA. I have one year left. I have not been in trouble since then and I’m now getting out of the Marine Corps with an honorable discharge. I have a wife, who is an RN, and two sons that I don’t want to see grow up 6 months at a time anymore because of deployments. My option is to get out of the military and hope that people are logical about this. I just received a formal job offer contingent on a Sterling background verification and screen. This is the state of Minnesota (ban the box) state but that doesn’t mean anything at all if the policy of the company is “don’t hire felons”. Hopefully they will understand that I was a kid who made a mistake and have proven that I am a contributing member of society.

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