As a candidate or an employer, it’s perfectly common to experience a bit of anxiety when awaiting the results of a background check. However, even if a crime has been committed, the charge may not be reportable for a number of reasons.
Here’s a brief guide that outlines things that most likely won’t be reported on a criminal background check:
1. Minor Offenses/Infractions
In most instances, minor offenses such as traffic violations*, jaywalking, or littering will be omitted from one’s criminal background report. Such infractions are usually only punishable by a small fine and aren’t necessarily considered crimes. There are times, however, when related offenses become misdemeanors due to severity.
As an example, a normal speeding ticket will be logged as an infraction, but if the speed recorded is dangerously high, the offense could cross the line into reckless driving— a misdemeanor in most states.
Additionally, there is some discrepancy between how a given offense is treated from state to state. For example, some states recognize possession of drug paraphernalia as an infraction, while some recognize it as a misdemeanor. Regardless, drug-related charges aren’t usually a good look when applying for a job. That said, drug-related infractions may not be reported due to their classification.
*It is important to note that all traffic records within a certain timeframe will be reported if a motor vehicle record search is run as part of the background check. They are just not usually reported as criminal records.
2. Expunged/Sealed Records
Expungement basically means to be erased or removed completely— stricken from the record so to speak. Depending on a number of factors, a charge can become eligible for expungement. When eligible, the individual who owns the record can send a formal expungement request to the court and, upon approval from a judge, it will be removed.
Similarly, due to certain circumstances, a record can be sealed, meaning it can’t be publicly accessed. Unlike expunged records, however, sealed records can be re-opened by court order; they aren’t erased.
But, as long as a record is sealed or expunged, it won’t be showing up on a standard background check report.
3. Juvenile Records
When it comes to juvenile records, they usually won’t show up on a criminal background check. Many states have protocols that automatically seal juvenile records when the individual turns 18. There are some exceptions, however.
For example, in Texas, juvenile criminal records can be reported on an individual under 21 who is being screened for employment.
While most juvenile charges won’t appear, they still exist on the record, they just can’t be reported.
4. Dismissed Records Over 7 Years Old
The consumer reporting industry is, in large part, regulated by a piece of federal legislation known as the Fair Credit Reporting Act (FCRA) which was enacted in 1970. The FCRA prohibits background screening firms from reporting any arrest record or adverse non-conviction information older than seven years.
In short, if there is a charge older than 7 years that didn’t result in a conviction, then it shouldn’t be showing up on a background screening report.
5. Records Regulated by State
When it comes to criminal records, each state has different laws and regulations that govern reporting policies. A consumer reporting agency needs to be aware of all such laws and regulations in order to deliver compliant results to individuals and employers.
California, for example, doesn’t allow the reporting of any records past seven years (even if they are conviction records), regardless of the nature. Some states don’t allow the reporting of marijuana-related charges and some disallow the reporting of pending charges. What can and cannot show up on a background screening report depends heavily on a given state’s regulations.
Knowing what will and won’t show up on a background screening report can go a long way in lending peace of mind. Such knowledge also outlines the importance of a compliant screening partner that knows exactly what can and cannot be reported in any given situation. If adverse action is taken based on non-compliant information, the employer assumes liability. For this reason, compliant screening is key.
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