This article will help you:
- Familiarize yourself with various state-by-state reporting requirements that affect background checks
- Determine why you may not see all possible criminal records reported
- Determine why you may or may not see dismissed records reported
In addition to federal laws that pertain to background checks, companies that use background checks should be aware that some individual states may also have their own laws that affect a background check and what can be reported by consumer reporting agencies (“CRAs”) like Checkr.
Similar to how the FCRA restricts CRAs from reporting non-convictions over seven years old, some states have passed their own legislation that further restricts CRAs from reporting both conviction and non-conviction information. For this reason, you may not see information reported in an employment background check, even if it is available on an unvetted source (like a mugshot database).
Checkr automates reporting in line with each state’s requirements using our Compliance Engine to help you avoid seeing information that is not reportable.
Which states restrict reporting on convictions?
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 (unless an exemption applies), including California, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, New York, and Washington.
Which states restrict reporting on non-convictions?
Under the FCRA, non-convictions are reportable for seven years from the filing date and can appear on a background report for seven years.
However, some states prohibit non-convictions from being reported. These states are California, Kentucky, New Mexico, and New York.
A "non-conviction" could include dismissed cases, not-guilty verdicts, alternative adjudications (programs that result in dismissed charges if the defendant completes certain conditions), and nolle prosequi (formal abandonment of prosecution).
While the states listed above don't allow dismissed records to be reported, Checkr can report dismissed records in the states that permit it. It's important to consider the totality of the reported record, charge(s), disposition (guilty, dismissed, pending) and sentencing, and give an individualized assessment.
Note: By default, the setting to show dismissed records is turned off. This means that customers will not see dismissed records unless they request to. Contact Customer Support to request a change to this setting.
Why don’t I see all possible criminal records?
You may notice that not all criminal records are reportable on a background check. In fact, a record may not be reportable due to state laws.
Some states limit the scope of reporting criminal conviction records to the last 7 years. That said, how the scope is defined can vary depending on data availability. For example, the 7 years can start from
- the date of the disposition of the record
- the date the candidate is released from incarceration
- the date the candidate is paroled
Public court records often do not include release information. When these later dates are unknown, the scope is measured by the earlier available date.
For more information on the scope of a check, see our article on lookback periods.
Below is a non-exhaustive list of other state-specific and industry-specific considerations to be aware of.
- Marijuana Misdemeanors: Non-Felony (Misdemeanor) convictions for marijuana possession can only be reported for 2 years from the disposition date. Furthermore, end users (employers) are also prohibited from seeking or considering this information when making employment decisions.
- Transportation Network Company(TNC): Regulatory exception under California Public Utilities Code 5445.2 allows CRAs like Checkr to report convictions beyond 7 years when preparing reports for TNCs. Under this regulatory reporting exception, TNCs can see convictions for CA candidates regardless of when they occurred.
- Maryland: Transportation Networks (TNCs) are required to search the "entire adult history" of candidates for TNC roles.
- Kentucky: Pending criminal cases are never reportable.
- Salary exceptions: Some states provide salary exceptions, allowing convictions to remain reportable for more than 7 years for candidates who expect to make more than a certain amount of money a year, such as $20,000 ($25,000 in New York).
What other location-specific laws should be considered?
This article deals with common state-based reporting requirements for CRAs like Checkr, which helps explain why certain records may not appear on the background check report.
Keep in mind, however, that states and municipalities also have specific laws regarding how end users and employers use and consider criminal records during an employment pre-screening process. The laws include individualized assessment of offenses, “Ban the Box,” salary bans, permissible purposes for employment credit checks, disclosure and authorization, and waiting periods for adverse action notices.
Checkr uses in-product compliance features to assist with many of these, but you should consult with your legal counsel on the specifics of the localities where you hire candidates.