When you order a background check, it’s easy to think you’re seeing the full picture. After all, background screening firms are required to follow federal and state Fair Credit Reporting Act (FCRA) guidelines. Everything must be covered, right? Unfortunately, that’s not always the case. Many screening firms are not familiar with the nuances of these regulations, which can leave you exposed to compliance violations, missing critical records that could be reported or receiving records that shouldn’t be reported at all.
Understanding what’s legally reportable, what’s actually being searched, and how far back those searches go is critical to protect your organization and make good hiring decisions.
What’s Reportable Under the FCRA?
Under federal FCRA rules, what’s reportable depends on where the applicant lives or works – whichever location is more conservative. Traditionally, reportability is based on where the applicant resides.
- Convictions are reportable indefinitely, except in states with specific reporting restrictions.
- Open warrants are reportable indefinitely (FTC Opinion Letter, Section 605).
- Pending or deferred charges require closer attention:
- Non-convictions are reportable for seven years from the arrest date.
- If a probation or sentence period extends beyond seven years from the most recent adverse item, the record becomes non-reportable once the probation or sentence is terminated.
- If the conditions of a deferred charge are met within the required timeframe, the record is typically not reported.
- Non-convictions are reportable for seven years from the arrest date.
Reporting “Scope”: What’s Really Being Searched?
Now that you know what can be reported, the next question is just as important: Do you know what’s actually being searched in a background check?
How far back does the search go? Are you receiving everything that is legally available and relevant? In many cases, employers are unaware of their screening firm’s reporting scope or internal reporting policy because it was never clearly explained.
This lack of transparency can be risky. Knowing exactly what information you’re receiving is critical to protecting your organization, including protection from negligent hiring claims. These claims can arise when an employer fails to search record information that a court would consider readily available. If you don’t fully understand what your screening firm is reporting, you may be vulnerable.
Aren’t All Screening Firms Reporting the Same Information?
No. Screening firms create their own policies and protocols for what they choose to report.
Many firms report only seven years of criminal history, regardless of what is legally permissible. In fact, this is so common that many employers think this is normal and that they’re receiving the maximum amount of information available, but that’s just not true.
What Employers Should Be Receiving
In most states, felony convictions are reportable indefinitely, meaning employers are not limited to convictions that are only seven years old.
Misdemeanor convictions should be reported for 10 years, although they may be reported for longer periods when an employer has a specific business need or legal justification.
Why Do Some Screening Firms Only Report Seven Years?
Put simply, it’s easier.
Limiting reporting to seven years means fewer records to review, faster turnaround times, and less complexity when it comes to understanding and applying varying state laws. However, this approach may be convenient for the screening firm, but it does not necessarily protect employers.
States with reporting restrictions include AK, AR, CA, KY, MA, MD, MT, NM, NY, and the District of Columbia. In these states, there are limits on how old reported information can be. For example:
- In CA, MA, MT, and NM, criminal record information older than seven years generally cannot be considered.
- In DC, the limit is ten years.
- In CA and NY, pending charges can be reported, while in KY and AK, they cannot.
Rather than dedicating time and resources to ongoing training and state-law compliance, some screening firms default to reporting only seven years nationwide…the easiest approach. But as a result, you may never see an eight-year-old violent battery conviction that could have meaningfully impacted a hiring decision.
Why Aren’t Misdemeanors Reported Indefinitely?
There are practical and fairness-based reasons for this:
- Declining an applicant for an old, less-serious misdemeanor offense may not align with fair hiring practices or EEOC guidance.
- Misdemeanor records are typically readily available in court systems for about ten years. After that point, records are often archived, requiring additional time and cost to retrieve.
Final Thoughts
The most important takeaway is simple: Ask questions and don’t assume. Many employers are surprised to learn that their screening firm’s reporting or internal policy is far more limited than they realized, exposing their organization to potential compliance risk and negligent hiring claims.
Curious what you’re receiving, and more importantly, what you’re not receiving? VICTIG can help! You can consult with one of our experts to find out where your current background check company may be falling short.
