Employee Criminal Records: How far back should you look?

3 min read
Wed, Apr 04, 2018

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In today's world, it's no longer safe to simply rely on a potential employee's resume as a reliable source of information. While the resume is a great source of information about the previous work history, conducting a criminal background check for employment has become an essential and vital part of hiring new employees.

How Far Back Can Employers Search Criminal Records?

Criminal background checks commonly provide employers with information about the potential employee such as arrest records and criminal convictions. While this information can be vital in determining whether an applicant is suitable and trustworthy, if not used properly you could also violate the privacy rights of the applicant. To prevent this from happening, you should be aware of federal and state regulations set in place to protect all parties involved. 

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Fair Credit Reporting Act 

The Federal Trade Commission (FTC) is the nation's government agency designed to protect consumer rights. The Fair Credit Reporting Act (FCRA) is a law designed to ensure the accuracy and privacy of the information provided in the credit report of consumers. The FCRA also explicitly lists the employer's responsibilities for conducting a criminal background check for employment.

Conducting Criminal Background Checks 

When conducting a criminal background check for employment, an employer can either do it in-house or through an external agency. Simply put, several employers forgo conducting their own background checks because it is a tedious and potentially litigious process. One benefit of employer conducted background checks is the federal law doesn't hold the information gathered through in-house background checks to time restrictions. On the other hand, outsourced agencies are governed by the federal government and must adhere to certain time restrictions.  

However, most employers find conducting a criminal background check for employment to be an arduous process and full of pitfalls. As a result, most firms outsource the process to a professional firm with experience. In either case, you should be aware of the following time restrictions.  

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Time Restraints on Criminal Background Checks 

In most cases, the federal government has set time restrictions on what can be reported in a background check for employment. However, criminal convictions do not have any federal time limits and can be reported at any time. While the federal government doesn't set time limits on criminal convictions, you should always be aware of any state regulations. For example, the reporting of criminal convictions older than seven years following the release, disposition, or parole are not allowed in Texas. However, this limitation doesn't include job applicants for occupations with a salary of $75,000 or more. In other states, certain types of information such as arrests without convictions are not allowed to be included in a criminal background check for employment. 

Time Restraints on Other Information 

While the time restraints on criminal convictions may not be governed by the federal government, the FCRA does set time limits on the reporting of other items. 

  • Tax liens are not allowed to be reported for more than seven years after it has been paid. 
  • Bankruptcies are not allowed to be reported after 10 years of it being settled. 
  • Collections accounts are not allowed to be reported after seven years. 
  • Any additional negative information such as civil judgments and civil suits are not allowed to reported after seven years. 

In any case, the previously listed FCRA time limits do not apply to occupations with salaries of $75,000 per year or more. 

It's imperative that every employer have an understanding of the criminal background check for employment process. In understanding this process, employers must make sure to adhere to all federal and state legislation regarding what can be used in the background check.  

Read more about employee record retention and keeping data safe.

Still have questions? Contact us and one of our FCRA-certified staff can help.

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Note: As of 2018, this post has been updated from its original date.

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