Skeletons in the Closet: What Can and Can’t Stay Hidden During a Background Check
We have all heard the phrase “skeletons in the closet.”
During spooky season, it makes for a good Halloween saying. In hiring, however, it raises an interesting question:
How much of someone’s past can actually show up on an employment background check?
The answer is more complicated than many employers realize. Background checks are subject to federal requirements as well as state and local laws that can affect what information can be reported and how employers can use it. Something existing in a courthouse or public record does not necessarily mean it will appear on an employment background report.
Here is what employers should understand about what can, and sometimes cannot, come out of the closet during a background check.
How Far Back Does a Background Check Go?
One of the most common questions about criminal background checks is whether they only go back seven years. The answer is not necessarily.
The Fair Credit Reporting Act places limits on how long certain types of adverse information can generally be reported by a Consumer Reporting Agency. For example, certain non conviction criminal information is generally subject to a seven year reporting period.
Criminal convictions are different. Under the federal FCRA, criminal convictions are not subject to that same seven year reporting limitation and may generally be reported regardless of how old they are. But federal law is only part of the picture.
Some states have their own restrictions that can limit the reporting or use of criminal history information. That means the answer to “How far back does a background check go?” can depend on factors such as where the candidate lives or works and the type of information being reported. That is why employers should be cautious about assuming that every background check follows the same seven year rule.
What Can Appear on a Criminal Background Check?
The answer depends on the searches being conducted, the jurisdictions searched, applicable reporting laws, and the records available from those sources.
Depending on those factors, a criminal background report may contain information about:
- Felony and misdemeanor convictions
- Pending criminal cases
- Arrest related information when legally reportable
- Charges and their dispositions
- Sentencing information
- Other legally reportable court information
Just as importantly, employers should understand that a criminal background check is not necessarily a search of every record that has ever existed.
The scope of the screening package matters.
A county criminal search, statewide search, federal criminal search, and national criminal database search are different searches and can uncover different information.
Some Skeletons May Stay in the Closet
Just because information once existed does not mean it can always be reported. Certain records may be restricted because of their age or because of federal, state, or local requirements. Records that have been sealed or expunged may also be unavailable or legally restricted from reporting depending on the jurisdiction and circumstances.
This is one reason searching a public court website and conducting an employment background check are not necessarily the same thing.
Information may exist somewhere, but a Consumer Reporting Agency still has responsibilities regarding what can legally be included in an employment background report.
Under the FCRA, CRAs are also required to follow reasonable procedures to assure maximum possible accuracy when preparing consumer reports.
An Arrest Is Not a Conviction
This distinction is especially important.
An arrest does not establish that someone committed a crime. Charges could have been dismissed, never prosecuted, or resulted in another outcome.
The EEOC specifically distinguishes arrests from convictions and states that an arrest alone is not proof that criminal conduct occurred. The agency advises employers considering criminal history to look at factors such as the nature and seriousness of the offense, how much time has passed, and the nature of the position.
Seeing something on a background report therefore should not automatically translate into a decision not to hire.
Finding the record and determining what the record means for the position are two different things.
Employers Have Responsibilities Too
The rules do not end with what appears on the report.
When an employer obtains an employment background report from a Consumer Reporting Agency, the FCRA establishes requirements before the report is obtained and when information from the report may lead to an adverse employment decision. These include disclosure and authorization requirements as well as pre adverse and adverse action procedures when applicable.
Employers also need to consider applicable state and local laws. Some jurisdictions place additional restrictions on when criminal history can be considered, what information can be used, or how employers must evaluate it.
The Real Lesson Behind the Skeletons
Background screening is not about digging up every skeleton someone has ever had.
It is about providing employers with accurate, legally reportable, and relevant information that can help them make informed hiring decisions.
Some criminal history may appear. Some information may be too old to report. Some records may be restricted by law. And even when something does appear, employers still need to consider whether and how that information can appropriately be used.
So this Halloween, remember:
Not every skeleton can come out of the closet, and not every skeleton that does should scare you away from a qualified candidate.
This article is intended for general informational purposes only and does not constitute legal advice. Background screening requirements vary by jurisdiction and circumstances. Employers should consult qualified legal counsel regarding their specific screening policies and obligations.