State Legal 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.

Which State Law Applies?

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.

The “Seven-Year” States

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:

Other State Regulations that May Apply

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.

Common State Laws

Here is a list of more commonly found State Laws that may apply when performing Background Checks:

• State restrictions on asking, seeking, recording, or in any way utilizing an applicant’s arrest, or detention records that did not result in conviction as a basis for discriminating from employment.
  • State’s laws differ on regulations when the arrest is still pending.
  • Some States restrict the use of arrest records when a pretrial diversion program has been successfully completed.
  • State’s laws can permit applicants the right to deny arrests or detentions not resulting in conviction by answering “no record” on applications or in interviews.
• State laws preventing the inquiry, disclosure, and/or use of juvenile or conviction records that are sealed, expunged, impounded, pardoned, or statutorily eradicated, as a basis for refusing to hire.
  • Some States grant exception if the record bears material relationship to the position.
  • Many State’s laws permit applicants to state they have never been arrested, convicted, or diverted of crimes that have been sealed, expunged, impounded, pardoned, or eradicated convictions in interviews or applications.
• State laws against the report or use in hiring of some types of first offense records (ex: drunkenness, simple assault, speeding, minor traffic violations) or misdemeanor convictions when probation or pretrial diversion has been successfully completed; the case is otherwise discharged without court adjudication of guilt; or if the case has been judicially dismissed.
• State law requirements that criminal conviction records may only be considered if there is a reasonable business relationship of the conviction to the employer’s protection of assets, or applicant’s trustworthiness, safety to self and others, or ability to perform the duties of the position.
• State laws that require employers to consider the number, nature, and time that has elapsed since the convictions before making hiring decisions.
• State laws that require conditional offers of employment prerequisite to the inquiry into and consideration of conviction records.

Exceptions

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:

• Education, Youth Organizations or Childcare
• Healthcare and positions with developmentally disabled, the aged, or the elderly
• Law enforcement
• State agencies
• Banking
• Gaming casino employees

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.