How Far Back Does Federal Background Check Go
Questions and Answers, Background Checks, employee background checks
How Far Back Does a Background Check Go?
Nothing in federal law restricts how far back an employer can look. The Fair Credit Reporting Act (FCRA) does not cover criminal records. This is a common concern among both employers and job seekers regarding pre-employment vetting. The answer varies depending on the type of background check and the location. Other types of investigations have more extended lookback periods. Then find out why employers and job seekers care about lookback periods. Consider how the ban-the-box laws affect businesses and candidates. The first variable that will influence the lookback timeline of a check is the type of check that the employer is conducting. Category-by-category rules vary depending on location, and employers should always check their state laws before designing a pre-employment screen policy. Background investigation providers, including backgroundchecks.com, also keep track of these laws and can assist employers in complying. Here is an overview of common length restrictions with different background checks: The most common lookback period for an employment-related criminal check is 7 years, though some states allow employers to look back a decade, and others don't have a limitation at all. These laws can vary in subtler ways, too, such as whether the lookback period includes when a person was convicted and sentenced for a crime or when that person finished serving their sentence for that crime. The term "Level 2 check" does not have a unanimous definition. Some report providers use terms such as "Level 1" and "Level 2" to delineate between tiers of investigation service packages. The state of Florida separates investigations into Level 1 and Level 2 categories, though it is the only state to do so as a matter of law and legal compliance. In Florida, a Level 1 investigation is a less in-depth check, including a state-only name-based criminal search, an employment history verification screening, additional local county criminal searches, and sex offender registry checks. A Level 2 assessment is more in-depth, incorporating fingerprint-based searches of Florida Department of Law Enforcement records and national FBI databases, along with more localized crime record searches with county courthouses or law enforcement agencies. So how far back can a Level 2 check go? Under these, a Level 2 check would have the same lookback period that the rest of Florida is required to observe. While Florida has no laws that limit how far an employer can look into a candidate's past, the state is still required to abide by national laws, including the FCRA. The FCRA has a "seven-year rule" that applies to certain types of information; we will discuss that rule in greater depth later in this post. Employment-related credit history checks can typically go back 7 years, though state laws will sometimes allow a 10-year lookback period—particularly for jobs with higher salaries or more intense financially-related job responsibilities. There has been pushback in recent years about the relevance of criminal history to most jobs. That pushback has led to a legislative movement that has banned or restricted pre-employment credit history checks in several states and localities. As of early 2021, 10 states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington) currently have laws that restrict employment-related uses of criminal checks. Several major jurisdictions—including Washington, D.C., Chicago, NYC, and Philadelphia—have passed similar laws. Employers in these areas should check their legal compliance requirements before they use credit history screenings as part of the employment vetting process. The lookback period for driving record checks varies more dramatically than most other investigations. Depending on the state, driving records can look back as far as 10 years or as little as three years. How far into the past a criminal check can go depends on not just the state in which the check is run but also the severity of the criminal activity. In some states, employers can access felony convictions indefinitely, while other states restrict this information to the seven-year or 10-year lookback periods. Verification checks (including educational credentials, employment history, and professional licenses) are not restricted to a lookback period. An employer can verify a bachelor's degree from a prestigious university, for instance, throughout a candidate's lifetime. So far, we have explained the general rules that apply to background screening lookback periods. For true compliance, however, employers need to be aware of the specific rules and regulations that apply to them. Typically, these regulations fall into two categories: FCRA requirements, which apply to all employers nationwide; and state regulations, which vary significantly from one part of the country to the next. The FCRA limits the adverse information that a reporting company or credit bureau can report to an employer. Under the FCRA, background screening companies cannot include bankruptcy cases in their reports if the reports are older than 10 years. Despite these decade-long lookback periods, the FCRA's most well-known length limitation on checks is the seven-year lookback rule. Per the FCRA, many pieces of adverse information—such as tax liens that have been paid off, accounts placed into the collection, civil suits, and judgments, and arrest records—can not be reported if they are older than seven years old. Because of these requirements, and because the FCRA is a federal law that all employers in the country must follow, the most common answer to the "How far into the past do criminal background checks go?" question is, "Seven years." The FCRA does not have any rules about how long criminal convictions can be reported. Based on the FCRA alone, misdemeanors and felonies can be reported on criminal background checks for as long as they remain on the record. While the FCRA does not limit how far into the past employers can look into their candidates' criminal histories, this law is not the only relevant regulation. Many states have their own laws about how long adverse information can appear on reports. These laws frequently prohibit criminal check companies from reporting any criminal information (including convictions) that are more than 7 years old at the time of the check. Keep in mind that these states that currently have laws restricting the lookback periods for criminal checks: STATE LOOKBACK RESTRICTIONS California Criminal convictions can only be reported for seven years Hawaii Felony convictions can only be reported for seven years; misdemeanor convictions can only be reported for five years Kansas Employers cannot consider any criminal history more than seven years old, unless the annual salary of the job in question will be $20,000 or over Maryland Employers cannot consider any criminal history more than seven years old, unless the annual salary of the job in question will be $20,000 or over Massachusetts Criminal convictions can only be reported for seven years Montana Criminal convictions can only be reported for seven years New Hampshire Employers cannot consider any criminal history more than seven years old, unless the annual salary of the job in question will be $20,000 or over New Mexico Criminal convictions can only be reported for seven years New York Employers cannot consider any criminal history more than seven years old, unless the annual salary of the job in question will be $75,000 or over Texas Employers cannot consider any criminal history more than seven years old, unless the annual salary of the job in question will be $20,000 or over Washington Employers cannot consider any criminal history more than seven years old, unless the annual salary of the job in question will be $20,000 or over Even if employers can look back as far as they want into a candidate's criminal history, older convictions should not be given equal weight. Employers should also be aware that their state's history restrictions may not be limited to time. For example, many states have laws prohibiting employers from considering non-conviction arrests. An arrest without trust does not prove guilt, so it should not be used against a job candidate. 10 states (Arizona, California, Hawaii, Maine, Massachusetts, Michigan, Montana, New York, Pennsylvania, and Wisconsin) ban employers from considering arrest records in any fashion. Five others (Georgia, Maryland, New Jersey, Washington, and Texas) restrict employers from using arrest records for employment decisions in certain situations, such as if the candidate was arrested but is a first offender (Georgia). Read our white paper about employment criminal checks and arrest records for a more detailed overview of these laws. Types of Checks and Their Lookback Period
Pre-employment background checks
Level 2 check
Credit check
Driving record check
Misdemeanors and minor infractions
Verification checks
Rules & restrictions
Fair Credit Reporting Act (FCRA) regulations
The seven-year look back rule
Criminal history and the FCRA
State regulations
About Michael Klazema The author
Michael Klazema is Chief Marketing Technologist at EY-VODW.com and has over two decades of experience in digital consulting, online product management, and technology innovation. He is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments.
How Far Back Does Federal Background Check Go
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