How far back do background checks go? Surprisingly to some, nothing in federal law restricts how far back an employer can look. The Fair Credit Reporting Act (FCRA) also does not cover criminal records. The length of the “lookback period” is a common concern among employers and job seekers regarding pre-employment vetting. The true answer varies depending on the type of background check and the location of the parties in question.
Some types of investigations have more extended lookback periods than others. Local ban-the-box laws can also affect businesses and candidates. Read on to learn about the many types of checks and how far back they may go.
Types of Checks and Their Lookback Period
The type of records in question is the main variable impacting lookback periods. Because state laws can vary substantially, employers should always consult with an attorney or review relevant local legislation before beginning any vetting. Background information providers, including Blinkx, also strive to keep track of these laws and their changes and may be able to assist employers in designing compliant policies for specific locales.
Here is an overview of common length restrictions regarding the different kinds of background checks:
Pre-employment background checks
Seven years is the most common lookback period for employment-related criminal checks across jurisdictions. Some states allow employers to look back an entire decade, while others don’t have any time limitations. However, these laws can have subtle variations. For example, the lookback period may change based on whether an individual has only been convicted and sentenced or has already completed their jail term.
Level 2 check
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.
Florida separates investigations into Level 1 and Level 2 categories, though it is the only state to do so as a matter of law. In Florida, a Level 1 investigation is a less in-depth check. These reports can include a Florida-only name-based criminal search, an employment history verification screening, additional local county criminal searches, or 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 does a background check go in Florida at Level 2? Florida has no laws that limit how far back an employer can look into a candidate’s past regarding criminal convictions. However, the state does abide by national laws, including the FCRA. The FCRA’s “seven-year rule” mandates that arrests not be reported for more than seven years on any background check. Florida follows these rules even for Level 2 background checks.
Credit check
Employment-related credit history checks can also typically go back seven years, though state laws sometimes allow a 10-year lookback period. Decade-long lookbacks are most often associated with jobs with very high salaries or a slate of high-level job responsibilities involving the management or handling of finances.
In recent years, there has been pushback about the relevance of credit history to most jobs. That pushback has led to a vigorous legislative movement that has resulted in the banning or restriction of the use of pre-employment credit history checks in several states and localities.
As of 2022, 11 states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, Washington) and the District of Columbia have laws restricting employment-related credit check use. Several major jurisdictions—including Chicago, New York City, and Philadelphia—have passed similar laws.
Employers in these areas should review all compliance requirements before using credit history screenings as part of their employment process.
Driving record check
The lookback period for driving record checks varies more dramatically than most other investigations. Depending on the state, driving records can look back ten years or as little as three years.
Misdemeanors and minor infractions
The severity of a crime can impact the lookback period in some jurisdictions. In some states, employers can access felony convictions for an indefinite period. Other states restrict this information to the seven-year or 10-year lookback periods. Reporting times for misdemeanors may vary based on state and local laws.
Verification checks
Verification checks (including educational credentials, employment history, and professional licenses) are not restricted by lookback periods. How far does a background check go when it’s meant to help an employer verify a degree? Functionally, these checks can span a candidate’s entire lifetime.
Rules & restrictions
So far, we’ve explored the general rules that apply to background screening lookback periods. However, for true compliance, employers need to be aware of specific rules and regulations that may 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.
Fair Credit Reporting Act (FCRA) regulations
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 if the reports are older than ten years. Despite these decade-long lookback periods, the FCRA’s most well-known length limitation on checks is the seven-year lookback rule.
The seven-year look back rule
Per the FCRA, background checks are prohibited from including many items of adverse information if they are older than seven years. These items include paid tax liens, accounts in collections, civil suits or related judgments, and especially arrest records. Therefore, the most common lookback period across the country is seven years. Because the FCRA is a federal law, all employers must follow this rule.
Criminal history and the FCRA
While it does cover arrests, the FCRA does not have any rules restricting how long criminal convictions can appear on a background check. Based on the FCRA alone, misdemeanors and felonies can be reported on criminal background checks as long as they remain on an individual’s record.
State regulations
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 seven years old at the time of the check.
Keep in mind that these states 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 may not always weigh as heavily as more recent crimes. The Equal Employment Opportunity Commission encourages employers to consider the length of time since a conviction as part of their procedures.
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 a conviction is not an indicator of guilt and should not be used as a disqualifying factor.
Ten states (Arizona, California, Hawaii, Maine, Massachusetts, Michigan, Montana, New York, Pennsylvania, and Wisconsin) ban employers from considering any arrest records. 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-time offender (Georgia).
Read our white paper about employment criminal checks and arrest records for a more detailed overview of these laws and to understand legislative restrictions on how far background checks go.
