Under federal law, the Fair Credit Reporting Act (FCRA) governs the reportability of criminal histories. The FCRA is designed to balance an employer’s need for relevant information with the need for previously convicted individuals to obtain employment and housing. Under the FCRA, Background Check providers are allowed to report (1) convictions indefinitely and (2) non-convictions within the past seven years. Generally, arrests not leading to conviction cannot be reported after seven years. Clearly, this opens up opportunities for employment, especially when most employers assume a “no records found” on a Background Check means that no records exist.
Many states further restrict background information that may be reported, limiting the scope of reporting of convictions to seven years, including California, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, New York and Washington.
Though the FCRA limits the reporting of non-convictions past the seven-year mark, some states (California, Kentucky, New Mexico and New York) prevent the reporting of non-convictions altogether. In many states, counties and municipalities, “Ban-The-Box” laws further restrict when an offer of employment may be extended, and create parameters concerning when an offer of employment may be rescinded. Year by year, legislative limitations continue to mount.
Essentially, this means a convicted molester with an older conviction could apply to work or serve in child-serving contexts, and an Organization would never know of the conviction, unless told of it by the applicant himself. As a result, it behooves Organizational leaders to develop familiarity with state, county and municipal specific guidelines and restrictions.