Legislation surrounding the restrictions placed on background screening services varies widely between states. Though there is a federal standard that all states must follow, other restrictions impact reporting requirements in each state.
All screening services must adhere to specific legislation at the state and federal levels. These differences vary in size and significance, so knowing exactly how your state operates is vital.
This guide will take you through some of the critical differences between states, including highlighting some of the most (and least!) restrictive requirements for pre-employment background, criminal history, and more. You might be surprised by the variance.
Are Background Checks the Same in Every State?
No. Background checks can vary significantly depending on which state you’re in as an employer. The reporting requirements all come down to the specific legislative regulations that are in place in each state.
One critical distinction is between state background checks and federal background checks. For example, the Fair Credit Reporting Act (FCRA) is a federal law. It restricts background screening services from highlighting non-convictions over seven years old.
However, some states take these restrictions further, potentially hiding information on both convictions and non-convictions from an employer. As of 2021, it is now illegal for federal agencies or contractors to screen for an applicant’s criminal history unless the employer has made a conditional offer.
All background screening services and employers must abide by the regulations put in place by the state they’re operating in as well as federal regulations, or they could face severe legal repercussions.
State Restrictions for Reporting on Convictions
Under the FCRA, convictions can be reported by background screening services regardless of when they occurred. However, as we previously established, different states have different rules. Certain states stand out when it comes to further restrictions on reporting for convictions:
The above states limit a background screener’s ability to report on convictions to just seven years. The statute is motivated by the effort to end discrimination against ex-convicts simply trying to get their lives back on track.
Ban the Box is a similar initiative specific to employers. It seeks to remove the checkbox on job applications that asks whether or not an individual has been convicted for a crime in their criminal history.
States Restrictions for Reporting on Non-convictions
In addition to restrictions regarding convictions, some states also place restrictions on non-convictions. The states listed below have banned reporting on non-convictions, making the information unavailable for background screeners. States that have legislation to this effect include:
California
Kansas
Massachusetts
Maryland
Montana
New York
New Mexico
New Hampshire
Washington
If the list seems familiar, it’s the same list as the states with legislation restricting conviction reporting. Legislation surrounding reporting both convictions and non-convictions are very similar throughout all states.
If a state restricts the reporting of convictions, you can reasonably assume that it will also limit non-convictions. Still, background screening services must always ensure that they act within state and federal regulations.
Other State Considerations
If you are curious about what other states have to say about reporting previous criminal activity, keep reading. We’ve listed some examples that should provide insight into how varied this legislation truly is on a state level. Let’s get into it.
Alaska
It may come as a surprise, but the state of Alaska has no law regulating the reporting of criminal activity, whether it resulted in a conviction or not.
The lack of regulation essentially means that background screeners are free to share whatever information they find with an employer, regardless of when it occurred and the final ruling.
Colorado
Colorado prohibits public employers from conducting a background check unless an applicant is a finalist or has received a conditional offer on the other end of the spectrum.
On the other hand, private employers can inquire into an individual’s criminal history immediately after the initial application.
Florida
Restrictions are minimal in Florida. It is perfectly fine to report an individual’s criminal history during the screening process.
This guide is a brief insight into some of the intricacies behind background screening restrictions. There’s no doubt that background checking services are a complicated process.
Employers would do well to invest their time (and money) into only the most professional services. Regulation violations can prove costly to both the employer and the screening service, so make sure you opt for a screener with ample experience!
At ScoutLogic, we offer comprehensive background screening that always follows the law. ScoutLogic can offer you a free, no-commitment, assessment of your current process to check for compliance, cost savings, and more. Get a free assessment today.
*Please note, ScoutLogic is not a law firm, so you always want to make sure you are speaking with qualified counsel.
David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.
David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.
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