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:
-
Restrictions to public access for criminal records held by the state criminal record
repositories.
-
Use of criminal record by employers and by property managers/owners.
-
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:
-
The ban is on public employers only
-
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
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