The use of criminal background checks for employment purposes has become increasingly
common over the past decade. According to a CareerBuilder survey from 2016, 72% of
employers run some type of background check on every new employee. Of the employers
using background checks, 82% are vetting new hires for criminal history.
Employers often expect criminal history searches to include all run-ins with the law, including
misdemeanor convictions, felony convictions, arrests, and other dispositions like dismissed
cases, nolle prossed, deferred adjudication, pre-trial diversion, etc.
However, what information shows up on a background check is subject to both federal
law and state laws.
Understand that this article contains general information regarding background screening
reports, and is not intended to provide legal advice. We recommend that you contact an
attorney if you have questions specific to your situation or needs.
The main federal law that governs the use of background checks for hiring decisions is
the Fair Credit Reporting Act (FCRA). It’s fairly straight forward when it comes to determining
what criminal history can and cannot be included on a consumer report:
> Non-convictions are reportable for seven (7) years
> Convictions are reportable without limitation
FCRA § 605(a)(5) prohibits CRAs from reporting: “Any other adverse item
of information, other than records of convictions of crimes which antedates
the report by more than seven years.”
This means we can report to clients “other adverse items” up to 7 years old from
the date of the report under the FCRA.
FCRA § 605(a)(2) specifically prohibits CRAs from including the following charges
in a consumer report: “Civil suits, civil judgments, and records of arrest that, from
date of arrest, that antedate the report by more than seven years.
So, under the FCRA, we can report arrests, criminal convictions, dismissed cases,
nolle prossed, deferred adjudication, pre-trial diversion, civil records, civil judgements,
etc. – if the date the record was created is 7 years or less from the date of the report.
But when state laws come into play, this all becomes a littke more tricky.
Employers in these states are legally prohibited from considering arrests that did not
result in a conviction:
- New York
Employers in these states are legally prohibited from considering expunged, sealed or
dismissed cases, including arrests related to an expunged, sealed or dismissed case.
- New Hampshire
Many states in the country have no laws banning or restricting the use of arrest information
for employers. These states include:
- New Mexico
- North Carolina
- North Dakota
- Rhode Island
- South Carolina
- South Dakota
- West Virginia
- Washington, D.C.
Some states have laws that allow employers to inquire about arrest records or consider
them as a factor for employment decisions, but only in certain situations.
Georgia: In Georgia, employers are limited in their ability to inquire about arrest records that
belong to first offenders. Employers are not allowed to consider arrest records that did not lead
to a guilty verdict or conviction if the subject is a first offender. Arrests of a person who has
previously been arrested or convicted of a crime are fair game for employers to consider.
Maryland: Employers in Maryland are only allowed to ask candidates about arrests or convictions
that “bear a direct relationship to the job.” In other words, employers cannot ask general questions
of their applicants like, “Have you ever been arrested?” or “Have you ever been convicted of a crime?”
They must specify which crimes they want to know about. If there is an arrest or conviction that is
relevant to the job at hand, employers can ask about it and consider it in their decision-making processes.
The exception is if those relevant arrests or convictions have been expunged or sealed.
New Jersey: New Jersey employers can request, retrieve, and consider information about arrests with
pending charges. However, they are not permitted to inquire about records that have been expunged
or arrests that did not lead to a criminal conviction. Employers cannot assume a candidate with a pending
arrest is guilty.
Washington: In Washington, employers may inquire about arrests but must include questions about the
status of the charges. The employer must ask whether the charges related to the arrest 1) are still pending,
2) have been dismissed, and 3) led to a conviction of a crime relevant to the job at hand. Employers are
required to ask whether the arrest took place within the last 10 years; older arrests cannot be considered.
Texas: In Texas, the restrictions for employers and arrest records relate to the salary of the job to be filled.
If the job pays $75,000 or less in annual salary, the employer is only permitted to consider arrests or convictions
from the past seven years. If the job pays more than $75,000 per year, employers can consider arrests or
convictions older than seven years.
Under the FCRA, convictions can appear on a background report regardless of when they occurred.
However, some states have limited the scope of conviction reporting to seven years, including:
- New Mexico
- New York
- New Hampshire
SafestHires uses in-product compliance features to assist with many of these, but you should also consult
with your legal counsel on the specifics of the localities where you hire candidates.