Beyond FCRA: Top 5 Confusing Background Check Laws by State 9 Jan 2018


Definition of Background Check Laws: Reviewing confidential and public information of employees to investigate their history. This is done during the hiring process to clear employees with a criminal history. The government uses them for security clearance and background check laws are different depending on the state.

While the Fair Credit Reporting Act (FCRA) is the law of the land for employment background checks, there are also a variety of state background check laws that employers should be aware of while hiring. To make things more confusing, background check laws are always evolving, so it’s important to pay close attention based on your organization’s location.

You can breathe a sigh of relief if you live in one of the 29 states as well as the District of Columbia that currently do not have any additional laws beyond FCRA: Alabama, Arizona, Arkansas, Connecticut, Delaware, D.C., Florida, Idaho, Indiana, Iowa, Louisiana, Maine, Mississippi, Missouri, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. For more on background check laws, check out our New Employment and Background Check Laws by State article.

If you’re still holding your breath because your state isn’t on the list, it’s OK to exhale. The experts at Trusted Employees can answer any questions you may have. Here they offer some of the top state-specific background check laws that trip employers up during employment background checks.

State Drug Testing and Background Check Laws

Background Check Laws

Pre-employment drug screening is standard for many organizations. Some states require specific written policies that must be approved prior to implementation. If you’re in Maine, the state Department of Labor must approve your drug testing program, for example.

State Reporting Limits on Criminal Records

FCRA says consumer reporting agencies can report all convictions, regardless of how long ago they occurred. However, some states restrict reporting convictions more than seven years old unless the candidate will make a certain salary. New York is one such state with legislation that says criminal conviction information over seven years old can only be reported if the candidate will earn over $25,000 annually.

State Rules Regarding Disqualification

A criminal record may not be reason enough to disqualify a candidate. Hawaii, New York, Pennsylvania, and Wisconsin currently have laws that require organizations to formally state how a candidate’s criminal record would directly impact their ability to perform a specific job. If it’s not directly related to job responsibilities, it may not be reason enough to legally disqualify someone.

Ban the Box Laws Increasing by State

Background Check Laws

Ban the Box is a movement to remove the checkbox that a candidate would fill in on an application that indicates they have a criminal record. Currently Hawaii, Massachusetts, Minnesota, and Rhode Island have laws that say you must wait until the first job interview or later to ask about a candidate’s criminal record. Many more states and cities have ban the box regulations in some manner. Eventually, many more will join the movement in the future.

Credit History Limitations by State

Think you can add a credit check to your employment background check? You may have to think again. Especially if you live in California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, or Washington. These states have passed legislation that limits the use of employment credit checks. Other states are striving to pass legislation so it’s likely more will soon follow suit.

If you are uncertain about different background check laws, make sure to contact Trusted Employees! Whether you are hiring your first employee or your hundredth, our top-notch professionals got your back!