What appears on a background check to a large extent depends on how the background check is conducted and the laws of your state. Some states require that background checks be performed using only state agencies, such as the state police. State laws can prohibit disclosing misdemeanor convictions to an employer as well as arrests and juvenile records. If a consumer credit reporting agency conducts the background check, the records may not be current.
A background check is often a routine part of the job application process. Employers will check on an applicant by ordering a consumer report from a consumer reporting agency, such as Experian or TransUnion. The applicant’s consumer report will include a credit history and may also include a criminal history, which will disclose misdemeanor records—if they are reportable. There are some legal limitations on the criminal information that can be included in a consumer report.
Federal Regulations / Federal law
Federal regulations are in place to ensure that you will not be discriminated against based on your criminal background. The Fair Credit Reporting Act governs background checks and requires that you have the right to consent to the check, the right to know the information about you that is contained in the databases, the right to be notified of the disclosures that were made and the ability to challenge the accuracy of the report before adverse action is taken. It also prohibits disclosure of arrests that did not lead to convictions that are over seven years old.
The Fair Credit Reporting Act regulates the consumer reporting agencies that are typically used by employers to obtain a consumer report on a job applicant. Although the FCRA requires consumer reporting agencies to provide complete and accurate information, it has never prohibited disclosing public records of criminal convictions. When it was first enacted, the FCRA limited the disclosure of criminal convictions to the seven years prior to the report; however, a 1998 amendment to the FCRA removed this limitation, thereby allowing consumer reporting agencies to report criminal convictions no matter when they occurred. As a result, employers are able to obtain an applicant’s consumer report that includes a comprehensive background check for criminal convictions.
State laws vary and many are more restrictive than federal law. For example, in California an employer cannot get arrest records but can get conviction records, both misdemeanor and felony, that are less than eight years old. Marijuana convictions cannot be reported after two years. Exceptions are made when the person would be in a position where he would have access to drugs. If you would be working with children, arrest records for sex- or child-related offenses are permissible. Pennsylvania allows both misdemeanor and felony convictions, but only if they are related to the job. Check with your state police or state labor agency for laws in your state.
Some states provide a greater degree of privacy protection than is found in the FCRA regarding employment background checks. For example, Texas and California law require consumer reporting agencies to follow the original seven-year rule in place when the FCRA was first enacted. Therefore, a Texas and California employer is prohibited from inquiring about an applicant’s criminal history that occurred more than seven years before the application if a consumer reporting agency is used to conduct a background search. California law also restricts criminal case information regarding arrest records. If the arrest did not result in a conviction, the arrest record cannot be included in the applicant’s consumer report. In Texas, firms may not furnish information on cases that involved guilty pleas that were resolved with alternative forms of sentencing, such as deferred adjudication or community supervision.
Performing the Check
Many states have a facility that does background checks for employers and others in their state. These checks are conducted in accordance with the state’s laws and are accurate. Some employers contract with consumer reporting agencies or even use Internet searches for their background checks. These types of checks are frequently inaccurate, out-of-date and incomplete. The Fair Credit Reporting Act requires that companies who perform these searches make every reasonable effort to confirm the data is correct, but this doesn’t always happen. In Pennsylvania, if you are adversely affected by an erroneous background check, you can sue for actual and punitive damages.
In some states, it is not necessary to use a consumer reporting agency to conduct a background check for criminal records. For example, states such as Texas and Oklahoma are “open records” states that permit public review of criminal histories complied by the state law enforcement agency. In Texas, such information can be obtained from the Department of Public Safety, and in Oklahoma this information is available from the State Bureau of Investigation. Other states, such as California, do not include criminal histories as public records. On the federal level, criminal histories compiled by the FBI or U.S. Department of Justice are not available to the public.
Though you can’t be discriminated against for your criminal background, proving that you were can be nearly impossible. Though technically the employer is required to tell you that you were turned down due to your criminal record, this doesn’t always happen. It is more difficult to ascertain why you were denied employment if you took an online test and consented to the background check as either one could have resulted in your rejection.
Generally, outstanding warrants, local or out of state, do not show. A separate search to see if you have any active warrants is not standard info that is included in arrest records, etc.
If the ticket was located in the traffic division, then it will probably not be discovered. If it was for an ordinance violation/misdemeanor and was issued out of the criminal division, then a proper background check should discover the warrant. If the background screening company conducts a proper search of each felony and misdemeanor court based upon your residential history for the past 7 years, the warrant will be discovered.
OK, What Should I Read Next?
- Will An Employer Hire Someone With Misdemeanor Convictions In Their Background?
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