Criminal background checks are being used far more often than they have been in the past. These checks may be a prerequisite to gaining employment or securing an apartment. This rise in the frequency that background checks are required has led many to question what can legally be included in a criminal background check. Unfortunately, the answer may vary depending upon the industry you intend to work in, the type of legal violations present, and the state where you reside. The following information can be used as a general guide to criminal background checks.
What is a Criminal Background Check?
Many people who undergo an employer-required background check may understand that a criminal background check is a part of this process. However, the primary difference between a criminal background check and an employment background check is that the employment one will include additional items, such as education and employment history, license verification, and reference checks.
Alternatively, criminal background checks focus on background information from municipal, county, state, and federal criminal records. They report on misdemeanor and felony convictions and may include pending criminal matters.
What Can Legally be Reported in a Criminal Background Check?
Background checks are governed by several laws that prevent employers and others requiring background checks from overreaching and collecting unnecessary data for them to make a determination. These laws include:
- Fair Credit Reporting Act: This law establishes how employers and other third parties can collect and use the information found on a criminal background check. If someone violates the provisions of the FCRA, it can result in steep fines and penalties. Therefore, it is vital to familiarize yourself with this law before requesting or using any information from a criminal background check.
- Title VII of the Civil Rights Act of 1964: This law restricts anyone from using data found in a criminal background check to discriminate against individuals based on age, gender, orientation, race, ethnicity, religion, national origin, or disability. Violations of this law should be reported to the Equal Employment Opportunity Commission.
A violation of either of these laws can result in severe penalties. Assuming the entity requesting the criminal background check is complying with the FCRA and the Civil Rights Act, they may legally view criminal background information obtained from:
- State court records
- National private databases containing criminal records
- Federal court records
- County court records
- Sex offender registries
By checking these sources, information related to misdemeanor convictions, felony convictions, pending charges, arrest warrants, probation violations, and incarceration records. While this sounds like it encompasses anything on a criminal record, it’s important to note that many exceptions exist. For instance, arrests older than seven years old that did not result in a conviction are not reported. Additional exclusions include:
- Criminal records that have been sealed
- Criminal records that have been expunged
- Legal infractions that result in citations or fines
Recently, steps have been taken to remove barriers to expungement for many crimes, such as convictions related to marijuana use or possession, as it has been legalized in many states. While these offenses are generally excluded from a criminal background check, they may be reported by the legal jurisdiction. It’s important to understand that employers are prohibited from using information about violations that have been sealed or expunged.
The criminal background check will contain information about the offense, including:
- The name of the defendant or the individual charged with the crime.
- The offense with which the subject was charged, including details about whether it is a misdemeanor or felony, and the degree.
- Details about how the charge was filed, including any case numbers associated with the charge and other relevant details about the case.
- The verdict or outcome of the charge.
- The sentence, including any jail time or fines imposed.
- The disposition or details about a settlement in the case.
Another common question relates to how far back in an individual’s history a criminal background check can review. While some states impose no time limit for background checks, others do. In many states, such as California, Montana, New York, and Washington, among others, this limit is seven years.
Criminal background checks can also be conducted using a name or fingerprints. As you can see, criminal background checks can become complicated quickly. And any legal violations of an individual’s right to privacy can put your company at risk for steep penalties. To learn more about conducting criminal background checks compliant with state and federal laws, contact USA Fact today.
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USA Fact Global Screening Services provides comprehensive background and criminal checks for employers that comply with federal and local laws. By helping you eliminate high-risk applicants through tailored solutions, USAFact enables you to create a safe and productive work environment and a foundation for future success.