What Records Will Show Up On My Background Check
From time to time, we receive inquiries from students, applicants, and the subjects of background checks about the type of criminal history information that will likely appear on their background screening reports. We thought we'd take this opportunity to address this question with a broader audience.
For those with criminal history who've wondered "what exactly will show up on my background check," the answer to that question is "it depends." But before we cover the different scenarios and potential responses, let's be clear: sometimes determining what will show up on a report can be rather complex.
Understand that this article contains general information regarding background screening reports, and is not intended to provide legal advice. We recommend that you contact an attorney if you have questions specific to your case. The following information relates to the federal Fair Credit Reporting Act (FCRA), the law that regulates background checks, and is provided for informational purposes only.
Background Screening Scenarios
Scenario #1: Non-convictions under seven years
The subject of the background report, what the FCRA refers to as the "consumer," has a criminal record that is a non-conviction. Examples of non-convictions include the following dispositions:
- Nolle prossed
- Deferred adjudication
- Pre-trial diversion, etc.
Under the FCRA, the record can be reported on the background check report for a period of seven years from the date of disposition (when the verdict is rendered).
Scenario #2: Non-convictions over seven years
The consumer has a non-conviction that is over seven years from the file or charge date. Under the FCRA, the record cannot be included on the background report.
Scenario #3: Convictions
The consumer has a conviction. Under the federal FCRA, that record can be reported forever. It does not matter how old it is. However, various state laws may limit the reporting of the record to employers. Consumers should also keep in mind that employers may see these records, but it doesn't mean it will necessarily influence their hiring decision if a record is very old or does not relate to the position sought.
Scenario #4: When non-convictions become convictions
A consumer was given deferred adjudication or deferred sentencing but violated the terms of the probation. Probation was then revoked and the record became a conviction. It would then be reportable without limitation under federal law.
Scenario #5: When probation violations don't result in convictions
A consumer was given deferred adjudication or deferred sentencing but violated the terms of their probation. Sentencing was revised but the disposition was not changed to a conviction. This is still considered a non-conviction and subject to the seven year reporting limitation.
Scenario #6: Sealed or expunged records
An applicant has a former record that has been expunged or sealed. Such records would not appear on the background report if they are in fact expunged or sealed at the time the record search was conducted at the county court.
Variables to Consider
Federal law is fairly straight forward when it comes to determining what criminal history can and cannot be included on a consumer report:
- Non-convictions are reportable for seven (7) years
- Convictions are reportable without limitation.
However, the same cannot be said of the many and varied state versions of the FCRA. Some states have limitations based on the projected annual salary of the position sought to determine if reporting restrictions apply. The intention is to limit criminal history reporting of those earning lower incomes, in effect giving those applicants a second chance.
The source of the potential complexity is determining what to follow, the federal law or the state law. And if the state law, then exactly which state? If we take just a moment to consider the following hiring scenario, we'll recognize the legal complexities that many employers face. If an applicant who resides in New Mexico applies for a job with a firm based in New Jersey but the job will take place in Illinois, what state law regarding criminal records reporting will apply if these laws all differ? The fact of the matter is, depending on which states are involved, the difference could mean a record of offense being included in a report versus a background check reporting coming back with no records found.
Honesty: Still the Best Policy
Perhaps a more critical question that applicants should consider during their application process is whether or not to be frank with HR or interviewing staff. We hear all too often that employers sometimes can’t move forward with an offer because the applicant failed to disclose information, and that act of omission is viewed negatively, when many times the offense itself is not a disqualifying factor. The hiring organization perceives the omission or falsification of the application by the applicant as an act of dishonesty, which for many employers, is hard to look past. Further, they have to apply that rule consistently. So when an applicant is asked about past criminal history that is neither sealed nor expunged (in most employment application scenarios, the defendant does not have to admit to the existence of those sealed/expunged records), it simply makes sense to be forthcoming. In that same breath, the applicant can easily explain the circumstances around a particular record and provide insight into rehabilitative efforts or call attention to their stable record of employment post criminal incident. In short, having a criminal record will not necessarily limit an otherwise strong candidate from obtaining the position, but dishonesty might.
Another Layer of Truth in Healthcare
And here's yet another consideration to make the above argument for candor and openness even more compelling. Applicants in highly regulated industries like healthcare, financial services, and childcare, to name key sectors, as well as applicants who will be obtaining professional licenses in those fields, are sometimes scrutinized more rigorously as a result of their profession. The applicant should understand that when s/he applies for licensure, the board that awards that license may have authority under state or federal law to see or know more about the individual's criminal history than if an employer of school ordered the background check. In other words, the licensing boards are not restricted by any limitations on criminal history information.
Students of healthcare programs should conduct proper research and understand the requirements of each program as well as licensure requirements for that profession. It’s not to say that the presence of criminal history eliminates one’s chances of pursuing a career in healthcare, but it makes sense for students to understand program requirements to ensure they can earn their desired license.