California’s Fair Chance Act is part of the Fair Employment and Housing Act (FEHA), and its primary...
How far back should you search criminal backgrounds for your applicants and employees? What are the restrictions in place? Should you search a different length for different job positions?
Understanding the reporting period of your criminal background checks can be confusing. There is a patchwork of federal and state laws that limit how far back you can search in your background check.
Fair Credit Reporting Act
At the federal level, Section 605 of the Fair Credit Reporting Act (FCRA), which regulates the use of employment background checks, limits the reporting of adverse civil, arrest, and non-conviction information older than seven years. It’s important to note that these restrictions do not include criminal conviction records or open warrants.
At the State Level
Many states allow Consumer Reporting Agencies (CRAs) like Cisive to search for records without restriction, but impose strict limits on what is reportable for use in employment and other business decisions. While the general industry standard for most background screening is seven years, a few states limit the reporting period to five years for felony records, and three years for misdemeanors.
While Cisive may find older criminal information, we can only report back within the scope allowed by the individual state laws.
There can be exceptions to these laws in some states as well. In California, an employer can check the background of an applicant for up to 10 years if the job salary is more than $125,000. In Texas, Colorado, New York, and more, there are income exceptions for people who make more than a specified amount.
A growing number of states do not allow any criminal record information to appear in a background check when a person was not convicted of the crime. Arrest records are almost universally banned for use in hiring decisions. Cisive’s reports will not include dismissed records or arrest records without a conviction, as they are not an indication of guilt.
Ban the Box and Fair Chance Laws
Additionally, there are Ban the Box laws and Fair Chance laws that also shape how employers are allowed to make hiring decisions when considering a criminal record.
Here is an updated list of Ban the Box/Fair Chance policies as of December 2022.
It’s important to note that this list is not comprehensive of all restrictions related to criminal background screenings. Additionally, Cisive is currently tracking more than 600 proposed pieces of legislation in the United States currently under consideration by state and local governments that could potentially impact and in some instances limit the use of information commonly reported in background screenings. So, as governments are currently in session, we may see this list change daily.
Work with Cisive to Determine the Best Solution for Your Organization
When deciding how far back to search for criminal records on your applicants, it is a risk-based assessment unique to your organization. The general rule of thumb is a seven-year search. However, if you offer job positions where your employees are interacting with vulnerable populations or entering homes of the public, you may choose to extend that search to 10 years. These populations include but are not limited to the following:
- Elderly people,
- Those seeking healthcare treatment, and
- Those receiving services in their homes, such as appliance delivery or utility work.
Additionally, when your organization is re-screening employees annually or every two years, you may not need to look back the full seven or 10 years, since you’ve already screened them upon hire. Restricting the scope of your search in this instance may be a cost-savings measure for your organization.
Ultimately, there’s no one-size-fits-all approach to decide how far back you should search criminal records for your organization. Your dedicated account management team at Cisive will work closely with you to determine the solution that fits best for your organization.
Contact us today to start building a criminal background screening program that works for you.