When it comes to the types of records reported on background checks, screening companies’ reporting practices sometimes differ. Even though the federal and state regulations of reportable records may seem clear at first blush, there is actually much gray area, and practices vary in the background screening industry within those legal parameters.
The FCRA allows all criminal convictions to be reported (no time limit) and arrest records to be reported for seven years. The only exception for employment purposes is an expected annual salary of $75,000, in which case these restrictions do not apply. However, just because all convictions are allowed does not mean a CRA can access all convictions and does not mean employers can or should consider all convictions.
One CRA may report all convictions found, while another may report only convictions within seven years. One may report withheld adjudications or dismissals within seven years, while another does not. All these practices are acceptable, and screening practices vary. Moreover, courts do not always retain records for the same length of time, and court rules may impact the ability to obtain older records.
There are also many conflicting laws regarding which records can be reported by CRA’s and which records can be considered by employers. The short answer? It depends on where the employer is located and where the applicant lives. Several states have statutes that preempt federal law and impose greater restrictions than the FCRA. Most of those states have exceptions in the form of a salary cap. For example, CRA’s cannot report any criminal charges to employers in Washington past seven years unless the employee is reasonably expected to make an annual salary of $20,000 or more. While the minimum wage has increased far beyond that in Washington, it does impact some part-time, temporary, and seasonal positions. If the salary cap is met, then all convictions can be reported. But can you consider them? It depends on your industry.
Ultimately, it is the CRA’s responsibility to comply with federal and state laws regulating reportable records, and it is the employer’s responsibility to know what criminal records can be considered in hiring decisions. Be proactive in understanding what is included in your checks, so you can make confident and informed hiring decisions.
Sabrina Sawyer is the CEO of Integris and the VP of HR and Business Solutions at Associated Industries, a premier employer association located in Spokane, WA.
The information provided is not intended to constitute legal advice and is for informational purposes only. Employers are strongly advised to consult with legal counsel on matters related to the Fair Credit Reporting Act.