BackgroundCheckGateway.com
BackgroundCheckGateway.com Background Check Website! 

Jul 04, 2008 



Add to del.icio.usAdd to del.icio.us


Call for information on volume discounts: 1.877.974.1500




  
PERSONAL BACKGROUND CHECK EMPLOYMENT BACKGROUND CHECK
First Name: Last Name: State:
Address (Optional) City (Optional)


STATE LAWS PERTAINING TO EMPLOYMENT-RELATED BACKGROUND CHECKS
State laws regarding pre-employment screening are variable, and in addition, some states have privacy and
civil rights laws governing background checks.  Below, we have compiled what we feel to be significant laws and legal
references for each state.  However, this compilation is not intended to be a complete or comprehensive guide to state employment laws in this area or a substitute for legal counsel.  We suggest the following web page as a starting point for conducting more in-depth employment-related background check law research: http://employeeissues.com/state_labor_law_r.htm

Note that state laws are subject to change and the information supplied below, which has been compiled as of  January 2006,  may be currently inaccurate.

Copyright (c) 2006.  All rights reserved.  It is illegal to copy or reproduce this page in whole or in part without the written permission of Washington Research Associates Inc.
----------------------------------------------------------------------------------------------------------------------------
ALABAMA
  • Criminal history background checks are required for employees of public and non public schools and licensed or approved child and adult care facilities
  • Applicable legislation:  Code of Alabama, Title 25, Article 3, Article 4; Title 22, Article 2, Article 4
----------------------------------------------------------------------------------------------------------------------------
ALASKA
  • Applicable legislation:  Title 18, Chapter 80; Chapter 20
----------------------------------------------------------------------------------------------------------------------------
ARIZONA
  • Criminal records checks are required for persons employed in the following agencies and programs:   (1) juvenile offender programs; (2) children's behavioral health programs; (3) developmental disability contract providers and home- and community-based service providers; (4) child care facility license applicants, employees, and volunteers; (5) child care group home certificate applicants, employees and volunteers; (6) shelters for victims of domestic violence; (7) residential and nursing care institutions and home health agencies; and (8) school district certificated personnel, non-certificated personnel and people who are not paid district employees, and information technology personnel.
  • Applicable legislation: Title 20, Chapter 11; Title 44, Chapter 11; Arizona Rev. Stat. 44.1693.14.1696
----------------------------------------------------------------------------------------------------------------------------
ARKANSAS
  • A notification of adverse action shall be in writing and shall contain:
  1. A statement of the action taken;
  2. The name and address of the creditor [not applicable to employment background checks]
  3. The name and address of the consumer reporting agency making the report;
  4. The social security number of the consumer, provided that the social security number has been given to the user of the consumer report or is contained in the consumer report
  • Applicable legislation:  Arkansas Code of 1987, Title 4, Subtitle 7

----------------------------------------------------------------------------------------------------------------------------
CALIFORNIA
  • Employers may not ask about an arrest that did not lead to a conviction; may not ask about pre-trial or post-trial diversion programs.  May ask about arrest if prospective employee is awaiting trial.  May not ask about a marijuana conviction more than 2 years old.
  • May ask about convictions even if no sentence is imposed.
  • Employers cannot seek from any source the arrest record of a potential employee.  However, if the arrest resulted in a conviction, or if the applicant is out of jail but pending trial, that information can be used.  An exception exists for the health care industry where any employer who has an interest in hiring a person with access to patients can ask about sex related arrests.  And when an employee may have access to medications, an employer can ask about drug related arrests.
  • Criminal histories or "rap sheets" compiled by law enforcement agencies are not public record.
  • Employers may access workers' compensation records after making an offer of employment.  To gain access, employers must register with the WCAB and confirm that the records are being accessed for legitimate purposes.  The employer may not rescind an offer due to a workers compensation claim.  However employers have the right to terminate a new hire because of a falsified application.
  • An application may ask "job related" questions about convictions except those that have been sealed, expunged or statutorily eradicated.
  • Medical records are confidential and may not be accessed in virtually all cases.  However if employers require physical examinations after they make a job offer, they will have access to the results.  
  • Individuals who are subject to employment screening should be able to obtain a copy of the background check whether or not an adverse action has been taken.  And applicants have the same rights to notice and consent whether the employer hires an outside company to conduct the investigation or does the background check itself.  In California, when an individual requests a copy of their report from the consumer reporting agency, the agency must explain their rights in a document written in both English and Spanish.
  • Review California Consumers Investigative Reporting Agencies Act for specific requirements, notably the following:           Any person requesting a consumer report for employment purposes....shall do the following:                                                 (1) Provide the consumer a means by which the consumer may indicate on a written form,  by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared.  If the consumer wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient, who may contract with any other entity to send a copy to the consumer.  The notice to request the report may be contained on either the disclosure form, as required by subdivision (a), or on a separate consent form.  The copy of the report shall contain the name, address, and telephone number of the person who issued  the report and how to contact them.  (2) Comply with Section 1786.40, if the taking of adverse action is a consideration.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • For more information, consult:  California Investigative Consumer Reporting Agencies Act, http://www.leglinfo.ca.gov  and California Consumer Credit Report Agencies Act, http:///www.leginfo.ca.gov 
  • Applicable legislation:  California Labor Code 432.7; California Civil Code

---------------------------------------------------------------------------------------------------------------------------
COLORADO
  • Employers may not inquire about arrest for civil or military disobedience unless it resulted in a conviction.
  • Applicant may not be required to disclose any information in a sealed record; may answer questions about arrests or convictions as though they had not occurred.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison, if the subject is expected to earn less than $75,000 per year.
  • Applicable legislation:  Colorado Rev. Stat. 2472308; 12.14.3
---------------------------------------------------------------------------------------------------------------------------
CONNECTICUT
  • State policy encourages hiring qualified applicants with criminal records.  If an employment application form contains any question concerning criminal history, it must include the following notice in clear and conspicuous language:  "The applicant is not required to disclose the existence of any arrest, criminal charge or conviction, the records of which have been erased."  Employer may not disclose information about a job applicant's criminal history to anyone except members of the personnel department.  (If there is no personnel department, then only to person(s) in charge of hiring or conducting the interview.)
  • Applicable legislation:  Conn General Stat. 46a79 to 7980; 3151i
----------------------------------------------------------------------------------------------------------------------------
DELAWARE
  • Do not have to disclose an arrest record that has been expunged
  • Applicable legislation:  Delaware Code tit. 11, sec 4374(e)
-----------------------------------------------------------------------------------------------------------------------------
DISTRICT OF COLUMBIA
  • Employers may not obtain or inquire into arrest record
  • May obtain record of convictions occurring within the last 10 years
  • Applicable legislation:  D.C. Code 21402.66
----------------------------------------------------------------------------------------------------------------------------
FLORIDA
  • Candidate may not be disqualified to practice or pursue any occupation or profession that requires a license, permit or certificate because of a prior conviction, unless it was for a felony or first degree misdemeanor and is directly related to the specific line of work.
  • Applicable legislation:  Florida Stat. 112.011
-----------------------------------------------------------------------------------------------------------------------------
GEORGIA
  • Employers may require that new or current employees who supervise children submit to a criminal records check.
  • Probation for a first offense is not a conviction; may not be disqualified for employment once probation is completed.
  • Applicable legislation:  Georgia Code 35334; 42862 to 42863
----------------------------------------------------------------------------------------------------------------------------
HAWAII
  • It is a violation of law for any employer to refuse to hire, to discharge or to discriminate in terms of compensation, conditions or privileges of employment because of a person's arrest or court record.
  • Employers may inquire about and consider an individual's criminal conviction record in the process of making a decision about hiring.  The investigation may go back 10 years, but may only be made after a conditional job offer has been extended.  If a conviction record bears a rational relationship to the duties and responsibilities of the position, the conditional job offer may be withdrawn.  The criminal conviction (not arrest) records, going back 10 years, of current employees may be checked when making a decision about termination or the terms, conditions, or privileges of employment, if a conviction bears a rational relationship to the duties and responsibilities of the position.
  • Employers cannot consider misdemeanor convictions for which a jail sentence cannot be imposed.
  • Agency guidelines for background check pre-employment inquires:  "Guide to Pre-Employment Inquiries" at http://www.state.hi.us/hcrc/brochures.html 
  • Applicable legislation:  Hawaii Rev. Stat. 3782 to 3782.5; 8313.2.
----------------------------------------------------------------------------------------------------------------------------
IDAHO ----------------------------------------------------------------------------------------------------------------------------
ILLINOIS
  • It is a civil rights violation to ask about an arrest or criminal history record that has been expunged or sealed, or to use the fact of an arrest or criminal history record as a basis for refusing to hire or to renew employment.
  • Applicable legislation:  775 Illinois Comp. Stat 5/2103
----------------------------------------------------------------------------------------------------------------------------
INDIANA
  • Limited criminal history records may not be disclosed if they are over 15 years old if the subject petitioned to limit access to their limited criminal history.
----------------------------------------------------------------------------------------------------------------------------
KANSAS
  • Employers cannot inspect or inquire into criminal records unless employee or applicant signs a release.
  • If arrest, conviction or diversion record is expunged, applicant does not have to disclose any information about it.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • Applicable legislation:  Kansas Stat. 124516(g); 214619(h); 224710
-----------------------------------------------------------------------------------------------------------------------------
KENTUCKY
  • See KRS 17.10(1) regarding employers' ability to request criminal records where the position would have supervisory or disciplinary power over a minor.
  • Applicable legislation:  KRS 17.10(1)
----------------------------------------------------------------------------------------------------------------------------
LOUISIANA
  • Prior conviction cannot be used as a basis to deny employment or an occupational or professional license, unless conviction is for a felony and directly relates to the job or license being sought.
  • Applicable legislation:  Louisiana Rev. Stat. 37.2950
---------------------------------------------------------------------------------------------------------------------------
MAINE
  • No one can be denied employment because of refusing to answer a pre-employment inquiry that is unlawful under the Maine Human Rights Act or Maine Human Rights Commission Rules.  A conviction is not an automatic bar to obtaining an occupational or professional license; only convictions that directly relate to the profession or occupation; that include dishonesty or false statements; that are subject to imprisonment for more than one year; or involve sexual misconduct on the part of a licensee may be considered.
  • Applicable legislation:  Me. Rev. Stat. tit. 5, sec. 5301; tit. 28A sec 703A; Code Me. R. 94348 Ch 3, sec. 3.06(B7)
----------------------------------------------------------------------------------------------------------------------------
MARYLAND
  • Employers may not inquire about any criminal charges that have been expunged.  May not use a refusal to disclose information as basis for not hiring an applicant.
  • Applicants need not refer to nor give any information about an expunged charge.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • Applicable legislation:  Md. Code [Crim Proc], 10109; Md. Regs, Code 09.01, 10.02
-----------------------------------------------------------------------------------------------------------------------------
MASSACHUSETTS
  • May not ask about arrests that did not result in conviction.
  • May obtain record of convictions occurring within the last 10 years.  May not ask about first-time convictions for drunkenness, simple assault, speeding, minor traffic violations or disturbing the peace.
  • May not inquire about misdemeanor convictions where the date of the conviction or the completion of incarceration, whichever date is later, occurred five or moor years prior to the date of application for employment, unless the conviction was within the five years immediately preceding the date of the application for employment.
  • If criminal record is sealed, applicant may answer "No record."
  • Applicable legislation:  Mass. Gen. Laws Ch 151B, sec 4; ch. 276, sec 100A; Mass Regs. Code tit. 804, sec 3.02
----------------------------------------------------------------------------------------------------------------------------
MICHIGAN
  • Employers may not request information on any arrests or misdemeanor charges that did not result in conviction.
  • If a person is convicted of not more than one offense, they may file an application with that jurisdiction to set the conviction aside.  If the order is granted, the record becomes "non-public" except where application is for law enforcement.
  • Applicable legislation:  Michigan Comp. Laws 37.2205A
----------------------------------------------------------------------------------------------------------------------------
MINNESOTA
  • State policy encourages hiring of criminal offenders under reasonable circumstances.
  • Employers cannot consider misdemeanor convictions for which a jail sentence cannot be imposed
  • Records may be sealed for first time drug offenders and become non-public
  • Applicable legislation:  Minnesota Stat. 364.01 to 364.03
----------------------------------------------------------------------------------------------------------------------------
MISSISSIPPI
  • By completing all requirements, a person not formally charged or prosecuted or upon dismissal of the charge, for any misdemeanor, may have the matter expunged.
  • A first time offender for a misdemeanor may petition the court to expunge the record
  • Applicable legislation:  Title 37; MS ST sec 99
----------------------------------------------------------------------------------------------------------------------------
MONTANA
  • Upon completion of a deferred sentence, the court may allow the defendant to withdraw a plea of guilty or no contest, or may strike the verdict of guilty from the record and order that the charge or charges be dismissed.  Once dismissed, the records may only be obtained upon showing of good cause.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • Applicable legislation:  Montana Code, Title 31, Ch 3; Part 1, Montana Code Section 31.3,
----------------------------------------------------------------------------------------------------------------------------
NEBRASKA
  • Employers may not obtain access to information regarding arrests that do not lead to conviction.
  • Applicable legislation:  Nebraska Rev. Stat 293523
----------------------------------------------------------------------------------------------------------------------------
NEVADA
  • Employers may obtain a prospective employee's criminal history record only if it includes convictions or a pending charge, including parole or probation.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • Agency employment background check guidelines provided at http://detr.state.nv.us/nerc/nerc_preemp.htm
  • Applicable legislation:  Nevada Rev. Stat. 179A.100(3)
----------------------------------------------------------------------------------------------------------------------------
NEW HAMPSHIRE
  • Employers may ask about a previous criminal record only if question substantially follows this wording:  "Have you ever been arrested for or convicted of a crime that has not been annulled by a court?"
  • It is unlawful discrimination for an employer to ask about an arrest record, to have a job requirement that applicant have no arrest record or to use information about arrest record to make a hiring decision, unless it is a business necessity.  It is unlawful discrimination to ask about arrest record if it has the purpose or effect of discouraging applicants of a particular racial or national origin.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • Applicable legislation:  New Hampshire Rev. Stat 651:5(Xc); N.H. Code Admin. R. Hum 405.03
----------------------------------------------------------------------------------------------------------------------------
NEW JERSEY
  • In order to determine work qualifications, employer may obtain criminal record information about convictions and about any pending arrests or charges.  When requesting record, employer must certify in writing that he will notify applicant; will provide sufficient time for applicant to challenge, correct or complete record; and will not presume guilt for any pending charges or court actions.
  • Applicants who are disqualified for employment based on criminal record must be given adequate notice and reasonable time to confirm or deny accuracy of information.
  • Individuals will not be disqualified from employment on the basis of a conviction disclosed by a criminal history background check if they have affirmatively demonstrated clear and convincing evidence of rehabilitation.  Individuals refusing to consent to or cooperate in the securing of a criminal history background check will not be considered for employment.  The prospective employer may require the prospective employee to pay to cost of the background check.
  • Applicable legislation:  New Jersey Admin. Code Tit. 13 secs 591.2, 591.6
----------------------------------------------------------------------------------------------------------------------------
NEW MEXICO
  • Procedures must be in place to fingerprint applicants for teaching certification.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison.
  • Applicable legislation:  New Mexico Stat. 56.3.2., 56.3.8., 56.3.6 among others
----------------------------------------------------------------------------------------------------------------------------
NEW YORK
  • It is unlawful discrimination for an employer to ask about any arrests or charges that did not result in conviction, unless they are currently pending.
  • Employers with 10 or more employees may not deny employment based on a conviction unless it related directly to the job or would be an "unreasonable" risk to property or to public or individual safety.
  • Employers may not consider misdemeanor convictions older than five years unless the person has been convicted of some other crime within the past five years.  For employees expected to earn less than $25,000 per year, employers may not consider any convictions older than seven years.
  • Upon request, an applicant must be given, within 30 days, a written statement of the reasons why employment was denied..
  • Agency guidelines for pre-employment inquiries:  http://www.nysdhr.com/employment.html 
  • Applicable legislation:  New York Correct. Law secs 750 to 754, NY Exec Law 296(16), General Business Law 380
---------------------------------------------------------------------------------------------------------------------------
NORTH CAROLINA
  • Criminal record checks are permitted for individuals who are employed by or who apply for employment with the following:  licensed hospitals, licensed nursing homes, licensed domicillary care facilities, licensed home care agencies or hospices, licensed child placement agencies, licensed residential child care facilities, licensed area mental health, developmental disability and substance abuse authorities, licensed child day care facilities,and registered and non-registered child day care homes that are regulated by the state any any other organization or corporation, whether for profit or nonprofit, that provides direct care or services to children, the sick, the disabled or the elderly.  The employee or applicant must consent to the record check.
----------------------------------------------------------------------------------------------------------------------------
NORTH DAKOTA -----------------------------------------------------------------------------------------------------------------------------
OHIO
  • Employers may not inquire into any juvenile records that have been sealed.  May not ask about any other sealed conviction or unsealed bail forfeitures unless question has a direct and substantial relation to job.
  • Applicants may not be asked about arrest records that are expunged; may respond to inquiry as though arrest did not occur.
  • Applicable legislation:  Ohio Rev. Code secs 2151.358(I); 2953.33
---------------------------------------------------------------------------------------------------------------------------
OKLAHOMA
  • Employers may not inquire into any criminal record that has been expunged.
  • If a record has been expunged, an applicant may state that no criminal action ever occurred.  May not be denied employment for refusing to disclose sealed criminal record information.
  • Applicable legislation:  Oklahoma Stat. tit. 22, sec 19(F)
----------------------------------------------------------------------------------------------------------------------------
OREGON
  • Before requesting information, employer must notify employee or applicant.
  • May not discriminate against an applicant or current employee on the basis of an expunged juvenile record unless there is a "bona fide occupational qualification."
  • May request information about arrest records less than one year old that have not resulted in acquittal or have not been dismissed.
  • May request information about conviction records
  • Before State Police Department releases any criminal record information, it must notify the employee or applicant and provide a copy of all information that will be sent to employer. 
  • Applicable legislation:  Or. Rev. Stat. secs 181.555 to 181.560; 659A.030
----------------------------------------------------------------------------------------------------------------------------
PENNSYLVANIA
  • Employers may consider felony and misdemeanor convictions only if they directly relate to person's suitability for the job.
  • Applicants must be informed in writing if the refusal to hire is based on criminal record information.
  • Agency guidelines, see:  "Pre-Employment Inquiries" at:  http://sites.state.pa.us/PA_Exec/PHRC/publications/other_publications.html  
  • Applicable legislation:  18 Pennsylvania Cons. Stat. 9125
----------------------------------------------------------------------------------------------------------------------------
 RHODE ISLAND
  • It is unlawful to include on an application form or to ask as part of an interview if the applicant has ever been arrested or charged with a crime.
  • May ask if applicant has been convicted of a crime
  • Applicants must be informed in writing of any disqualifying information found in the background check.  Employers are required to keep on file evidence that criminal background checks have been obtained for all employees as well as the results of the checks.
  • Applicable legislation:  Rhode Island Gen. Laws 6.13.1.20.6.13.1.21(a); 6.13.1.20(2)(1); 6.13.1.27; 6.13.1.27; 6.13.1.21; 6.13.1.21(b)
----------------------------------------------------------------------------------------------------------------------------
SOUTH CAROLINA
  • Any person who has a criminal offense discharged, dismissed, or is found not guilty can have all records of the arrest destroyed and no evidence of such record shall be retained by any municipal, county, or state enforcement agency.
  • No person may be refused an authorization to practice, pursue, or engage in a regulated profession solely because of a prior criminal conviction unless it relates directly to the profession or occupation.
  • Applicable legislation:  SC ST 17-1-40
-----------------------------------------------------------------------------------------------------------------------------
SOUTH DAKOTA
-----------------------------------------------------------------------------------------------------------------------------
TENNESSEE
  • Applicable legislation:  Tennessee Code 47.18.1001.1011
-----------------------------------------------------------------------------------------------------------------------------
TEXAS
  • Deferred adjudication dispositions are not to be used as a basis for adverse actions by employers.  In a deferred adjudication , the judge places the defendant on community supervision after a receiving a plea of guilty or a plea of nolo contendere in either a misdemeanor or felony case.
  • Employers may only consider convictions that have occurred within 7 years from date of conviction, end of parole, or release from prison, for all positions in which the subject is expected to earn less than $75,000 per year.
  • Applicable legislation:  Texas Health & Safety Code 765.001 and following; Texas Gov't Code 411.118.
----------------------------------------------------------------------------------------------------------------------------
UTAH
  • Employers are not permitted to ask about arrests and there are restrictions on the use of expunged criminal records.
  • Asking about felony convictions is permitted but is not advisable unless the felony may be related to the job.
  • Before requesting criminal record information on an employee or potential employee, the employer must obtain a signed waiver from the employee about whom the information is being requested.
  • For agency guidelines regarding pre-employment inquiries, see also "Pre-Employment Inquiry Guide" at http://www.rules.utah.gov/publicat/code/r606/r606-002.htm
  • Applicable legislation:  Utah Admin. R. 606-2
----------------------------------------------------------------------------------------------------------------------------
VERMONT
  • Employers must inform current or prospective employees that they have the right to appeal the accuracy and completeness of any criminal record found.
  • Applicable legislation:  Vermont Stat. tit. 20, sec. 2056c
-----------------------------------------------------------------------------------------------------------------------------
VIRGINIA
  • An employers conducting a pre-employment background check may not require an applicant to disclose information about any criminal charge that has been expunged.
  • Applicable legislation:  Virginia Code 19.2392.4
-----------------------------------------------------------------------------------------------------------------------------
WASHINGTON
  • Employers who ask about arrests must ask whether the charges are still pending, have been dismissed, or led to convictions.
  • Employers who obtain a conviction record must notify employee within 30 days of receiving it, and must allow the employee to examine it.  May make an employment decision based on a conviction only if it is less than 10 years old and the crime involves behavior that would adversely affect job performance.
  • If a conviction record is cleared or vacated, applicant may answer questions as though the conviction never occurred.
  • Applicable legislation:  Washington Rev. Code 44.43.815; 9.94A.640(3), 9.96.060(3), 9.96A.020; Wash. Admin Code 1621240
-----------------------------------------------------------------------------------------------------------------------------
WISCONSIN
  • It is a violation of state civil rights law to discriminate against an employee on the basis of a prior arrest or conviction record.
  • In conducting a background check, employers may not ask about arrests unless there are pending charges.
  • Employers may not ask about convictions unless charges are substantially related to the job.
----------------------------------------------------------------------------------------------------------------------------
WYOMING
  • Child and disabled care agencies must screen prospective employees and volunteers who may have unsupervised access to minors or disabled adults.
  • Deputy coroners and employees of a county coroner may be required to provide fingerprints and other information necessary for a state and national criminal history background check





Copyright © 2008, BackgroundCheckGateway.com