Compliance

Key State Compliance Regulations Involving the Use of Criminal Records

A number of states have their own regulations regarding the use of criminal records. These restrictions come from three different focal points:
  1. Restrictions to public access for criminal records held by the state criminal record repositories.
  2. Use of criminal record by employers and by property managers/owners.
  3. Restrictions on Consumer Reporting Agencies on reporting criminal records to employers or property owners/managers.

State Criminal Record Repositories

As mentioned on the Government Sources page, when a public record leaves the courthouse and is sent to the state’s criminal record repository, often the record is no longer public. Typical restrictions include a signed release from the subject is needed, or the requester must be pre-approved, or perhaps the submission of fingerprints is required. Or else the state agency simply will not provide record to the public - such as in California, New York, North Carolina, and Utah.

State Restrictions on Employers or Property Owners

The Federal Compliance Page [insert link] provides extensive information about the Federal Fair Credit Reporting Act (FCRA) and it’s affect on employers and property owners. Many states have laws which are more restrictive than FCRA. These restrictions generally are applicable to one or both of the following:
  • What can be reported by a background screening firm (also known as a Consumer Reporting Agency - or CRA)
  • What can or cannot be used by employers during the hiring process; and if used, at what point during the hiring process.

Typical State Restrictions on Criminal Records

Below is a summary of the typical restrictions that are placed by state legislation on the use of criminal records. Please understand this is a complex subject that affects employers, landlords, government licensing boards, and consumer reporting agencies (CRA). Add the continuous stream of ongoing changes mandated by state legislation, the need for an easy-to–use solution is paramount. The State Rules Register provides the necessary solution — individual state restrictions on CRAs and users, best practices and practical tips, and ongoing notification when state and federal laws change.
  • Prohibiting the Use of Arrest Records
    The federal requirement allows employers to property managers to consider arrest records (with no disposition) dating back 7 years. Some states are more restrictive, depending on the type of record and/or who obtains the record.
  • Prohibiting the Use of Misdemeanor Convictions
    These states have decided that in some cases misdemeanor infractions should not be considered for employment purposes - that they are not job-related.
  • Limitation on Use of the Certain First Offense Records.
    Per certain circumstances, two states (Georgia and Massachusetts ) give offenders a “mulligan” of sorts: But their laws only pertain to certain infractions or certain conditions must be first met.
  • Restrict the Reporting of Records based on Time Periods
    There is a big difference in a state law that restricts the use of a criminal record by employers and a state law that restricts what a vendor, i.e., consumer reporting agency, CRA, can report. Several states restrict what a vendor can report, i.e., they have different limitations than the federal FCRA based on time periods. However, there are many exceptions and many of the states are changing their laws to mirror the federal guidelines.

    According to Mr. Larry Henry, author of the State Rules Register:

    “States that still restricted vendor reporting of criminal conviction information to seven years are California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, New York, Texas, and Washington.

    However, Kansas, Maryland Massachusetts, New Hampshire, and Washington waive the time limit if the applicant is reasonably expected to make $20,000 or more annually. In New York, the exception is $25,000. In Colorado and Texas, the figure is $75,000. Further, since Colorado and Texas enacted their FCRA analog statutes after September 30, 1996, they are preempted by the FCRA 15 U.S.C. §1681t(b)(1)(E). California removed its $75,000 salary cap after September 30, 1996, and as such, at least that portion of the law is preempted. An interesting argument could be made that the entire statute is preempted since it was amended after the cut off date.”
  • Limitation to Record Access to Only Employers in Certain Industries
    A number of states have determined that certain industries are deemed crucial and must have access to records form the state criminal record repositories. Generally these industries are related to child care, schools, nurseries, the elderly, etc.
  • Limitations When an Employer May Ask an Applicant about Prior Criminal Records
    Also known as ban-the-box, this is perhaps the biggest issue now in the news related state criminal record restrictions. Ban-the-box means removing questions about criminal records from employment applications. The employer would then have the ability to inquiry of or consider a criminal record at some later point in the hiring process, as indicated in the list below of existing state restrictions in use.

    Ban the box state laws can have two flavors:
    1. The ban is on public employers only
    2. The ban is on both public and private employers (with some variances).

    The use of ban-the-box eliminates a great deal of discrimination, and gives those with a blemish in their past a chance to show their qualification instead of being denied any chance for job consideration.

    This requirement does not apply to employers who are expressly permitted to inquire into an individual’s criminal history for employment purposes pursuant to any federal or state law.

    At present, there are between 7 and 12 states with ban the box laws in place - the number varies based on how the ban is interpreted.

Where Are All the Answers? The State Rules Register

The legal use of state criminal records is a complex subject that affects employers, landlords, government licensing boards, and consumer reporting agencies (CRA). Plus, add to the mix the continuous stream of ongoing changes mandated by state legislative bodies.

The need for an easy-to–use solution with sound research and advice is paramount. The State Rules Register provides the necessary solution. The online product provides individual state restrictions on CRAs and users, best practices and practical tips, and ongoing notification when state and federal laws change. Quite simply, the Register is designed for those needing an uncomplicated explanation in plain English of what is reportable to the client, what is usable by the client, and what steps the client must take to be in compliance with state laws. There are three Reports available PLUS a library of Resource Tabs (mini-white papers), along with other Special Guidelines and Forms.

Perhaps best of all (besides being very reasonably priced), the State Rules Register is authored by one the nation’s leading employment law attorneys - Mr. Larry Henry. We encourage you to visit the demo page at www.crahelpdesk.com/demo/reports.aspx


© Copyright 2018, BRB Publications, Inc. All Rights Reserved
BRB Partners

Logo
Nationally recognized law practice specializing in FCRA and employment law
Visit Our Web Page