Learn about additional state and municipal laws and regulations that require employer compliance.
Beyond Federal and EEOC laws and guidelines that govern Background Checks and the use of information for employment purposes, there are also State and Municipal laws and regulations that require employer compliance. Many times these State laws are more stringent than FCRA regulations. As State laws differ from state to state and are constantly changing, both RiskAware and Employers must stay up to date on how State legislation impacts background screening. RiskAware assists our clients with understanding State laws and regulations and when and how to apply them to background check processes and policies. RiskAware’s Operations manage review and compliance to State laws and regulations into each completed Background Check final report.
In general, application of State law for Background Check compliance follows the state into which the candidate will work as well as the state in which the applicant currently resides. If the state when the company is located is different than the state of the applicant’s residence, then reporting rules are based on the most conservative state. For example, if the job for which the candidate is applying is located in Florida (which has no restrictions aside from FCRA), but the applicant resides in California (which limits criminal history to 7 years), then CA state laws would prevail and only 7 years’ worth of criminal convictions would be reported.
Note: This material is provided for informational purposes. Though this information may be helpful, it is not legal advice. The law is complex, is subject to change, and municipal, state and federal requirements must be interpreted for each companies background checks by your own legal counsel, to guarantee accuracy, currency and completeness.
Several states have legislated restrictions for how long in the past Background Check information can be referenced and recorded into Background Check final reports. In addition, some States have additionally outlined Salary Cap conditions upon which Background Checks are exempted from time limits and can therefore be provide regardless of stated time limits. Below is a listing of States with time limits and their corresponding salary caps:
|State||Time Limit – Reporting Convictions||Time Limit – Reporting Non-Convictions||Salary Cap Exemption|
|California||7 Years||Pending (credit reports may not be able to report pending matters)||No cap|
|Kansas||7 Years||7 Years||$20,000|
|Maryland||7 Years||7 Years||$20,000|
|Massachusetts||7 Years||7 Years||$20,000|
|Montana||7 Years||7 Years||No cap|
|Nevada||7 Years (credit only)||7 Years (credit only)||No cap|
|New Hampshire||7 Years||7 Years||$20,000|
|New Mexico (applies to companies that provide credit reports to any clients, but not necessarily tied to any particular report to a client)||7 Years||7 Years||No cap|
|New York||7 Years||Pending only||$25,000|
|Washington||7 Years||7 Years||$20,000|
Beyond State laws referenced above that specify the time and salary cap limits regulating how far back background check Information can be reported, many if not most States have additional laws that require background check compliance. Many States have laws to limit the use of arrest and conviction records by prospective employers beyond applications already in place for the FCRA and EEOC. These range from laws and rules prohibiting the type of information an employer is permitted to request from the applicant, to those that restrict the use of conviction data when making an employment decision. Several state laws mandate fingerprint identification.
For a current list of laws and restrictions by State, please contact your RiskAware Operations Specialist.
Here is a list of more commonly found State Laws that may apply when performing Background Checks:
In those States that impose higher legal standards beyond those prescribed by FCRA or EEOC guidance, many as well afford exceptions allowing the inquiry and use of criminal arrest and conviction records and in particular when employers are hiring for the following types of jobs:
In these cases many States laws generalize that it is not employment discrimination to refuse to hire an individual based upon on a learned applicant arrest or conviction record since the circumstances of the charge may substantially relate to requirements of the position and to public safety.