How far back can employers check criminal records?

How Far Back Can Employers Check Criminal Records?

When recruiting new employees, employers must balance their need to obtain accurate information about a job candidate’s background with laws and regulations that protect sensitive information. One of the concerns employers often have is when to stop checking a potential employee’s criminal record in the hiring process. Does the employer have the authority to check a candidate’s criminal record from 5, 10, 20 years ago? If so, how far can they go?

Do Employers Have the Legal Right to Check Criminal Records?

Employers’ ability to check criminal records is governed by federal law, state law, and local regulations. In Title VII of the Civil Rights Act of 1964, employers are prevented from discriminating against workers based on their race, color, religion, national origin, or sex.

Federal Guidelines

There are no federal laws prohibiting employers from checking criminal records, but the FCRA (Fair Credit Reporting Act) sets guidelines. The FCRA requires:

• Written consent from the candidate before any background check is conducted.
• Disclosure about the nature and scope of the check.
• Employers must certify that they will have a legitimate business reason (LBR) for acquiring the information.

EEOC Guidelines

Although there is no specific "time limit" for evaluating criminal records, the Equal Employment Opportunity Commission (EEOC) provides general guidelines. The ECO recommends that employers:

Consider the nature and serious of the offense

• Offenses related to the duties of the job (if the offense is directly job-related).
• Offenses that pose a direct or indirect threat to the victim or the public.

Consider the age of the offense

• Offenses are more relevant if they involve violence, dishonesty, or breach of trust, regardless of age.
• Offenses older than five years may be less pertinent, especially if the record has been expunged or sealed.

Consider other factors

• The candidate’s personal characteristics, such as rehabilitative efforts.
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• Compliance with applicable laws and ordinances.

State and Local Laws

Some states regulate the use of criminal record information. For example:

• California: Employers cannot ask about or consideration of an applicant’s social media information.
• New York: Employers cannot inquire about or disclosure of a candidate’s personal social media information.
• Chicago: Employers cannot consider arrests or detainment without conviction.

In Illinois, candidates with convictions for certain juvenile offenses (e.g. shoplifting, drug usage) are not subject to employment discrimination.

Public Policy and Local Ordinance

Local governments may place restrictions on employers’ usage of criminal records. A local ordinance like the one in Montgomery County, Maryland prohibits employers from asking questions about an applicant’s use of marijuana or other previously illegal activities.

Additional Considerations

Employers should consider the following as they review criminal records and make hiring decisions:

In most cases, crimes committed more than ten years ago are given less weight.
Background checks may not only reveal criminal records but also other sensitive information, including:

• Bankruptcy
• Tax disputes
• Divorces
• Paternity suits

Fairness and Reasonableness

Employers must decide whether a candidate’s record is relevant to the requirements of the job and considers the potential impact on diverse groups of employees. For example, a hiring manager may face challenges in justifying reasons for not hiring a candidates with a non-serious criminal record

Conclusion

Employers must navigate a complex patchwork of federal, state, and local laws governing the use of criminal record information. When deciding to check a candidate’s records, employers should consider

The legal landscape ensures that employers have the tools to make informed hiring decisions while respecting the rights and privacy of job candidates