My company uses a background check company to conduct background checks on our applicants. Recently, I received a report that included a felony conviction from 1995. I thought there was a limit on how far back we could look for criminal convictions. Can I consider this conviction in making my hiring decision?
There are both state and federal laws that restrict how a background check can be conducted, and what type of information can be provided in a background check report.
The federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) both restrict what background check companies (referred to in the statutes as “investigative consumer reporting agencies”) and prospective employers can and must do with regards to information on individuals who are applying for jobs.
There are a number of disclosure requirements and procedural steps incumbent on both employers and the investigative consumer reporting agencies.
In addition, and most relevant to your question, the ICRAA limits the type of information the investigative consumer reporting agency can provide to the prospective employer.
With regards to records of arrest, indictment or conviction of a crime, the investigative consumer reporting agency may provide information that is no more than seven years from the date of “disposition, release, or parole” (California Civil Code Section 1786.18(a)(7)).
In your particular situation, although the conviction is from 1995, the investigative consumer reporting agency may be legally entitled to provide you the information if the applicant was released from prison within the last seven years.
You will need some additional information from the background check company to be certain that it was legally authorized to provide you with that information.
The statutes don’t specifically prohibit an employer from considering information that is beyond the limits of what an investigative consumer reporting agency is allowed to provide; however, before considering such information in making your hiring decision, we would suggest consulting your own legal counsel.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.