How do background check reporting requirements vary by state?

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 existing federal laws that pertain to background screening, end-users of consumer reports (employers or contractees) should be aware of the reporting requirements under individual states’ rules.

Similar to how the FCRA restricts consumer reporting agencies (or “CRAs” like Checkr) from reporting non-convictions over seven years old, some states have passed their own legislation that further restricts CRAs like Checkr 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, including California, Kansas, Maryland, Massachusetts, Montana, New Mexico, New York, New Hampshire, and Washington.

Which states restrict reporting on non-convictions?

Under the FCRA, non-convictions are reportable for seven years from the file date and can appear on a background report for seven years.

However, some states entirely prevent non-convictions from being reported. These states are California, Kentucky, New York, and New Mexico.

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 will report dismissed records in the states that permit it. It's important to consider the totality of the record being reported, charge(s), disposition (guilty, dismissed, pending) and sentencing, and give an individualized assessment.

Why don’t I see all possible criminal records?

You may notice that not all criminal records are reportable on a background check, which might lead you to question whether the report is accurate. 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 the availability of data. For example, the 7 years can start from:

• the date of disposition
• the date the defendant is released from incarceration
• the date parole is completed (parole from the original crime)

Note: Public court records often do not include release information. When these later dates are unknown, scope is measured by the earlier available date.

For more information on the scope of a search, see our article on lookback periods. 

Other Considerations

Below is a non-exhaustive list of other state-specific and industry-specific considerations to be aware of.

• California:
  • 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 Networks (TNC): Regulatory exception under AB1289 allows consumer reporting agencies (Checkr) to report convictions beyond 7 years when preparing reports for TNCs. Under this regulatory reporting exception, TNCs can see convictions for CA applicants regardless of when they occurred.
• Kentucky: Pending criminal cases are never reportable.
• Salary exceptions: Some states provide salary exceptions, allowing convictions to remain reportable for candidates who expect to make over $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 also consult with your legal counsel on the specifics of the localities where you hire candidates.