Regional Background Check Regulations: West 28 Dec 2017

As we continue to look at the various background check laws by state, our next regional stop is the Great Plains and Rocky Mountains of the American West.

Montana

In addition to being held to FCRA regulations, there are additional strictures around how an employer in Montana can use a candidate’s criminal record report when making a hiring decision. These include:

• Juvenile criminal records cannot be asked about nor can they be considered when making a hiring decision.
• Though the employer has the right to conduct a criminal background check, they cannot automatically disqualify someone solely because of their criminal record.

In addition, Montana law prohibits the employer (or background screening companies) from asking a candidate for a username or password to any social media account as a condition of employment.

Colorado

Like a number of other states, Colorado has restrictions on employers who wish to obtain credit information on a prospective employee. The employer cannot ask the candidate or employee to consent to a credit check unless it is:

1. Legally required.
2. For a job at a financial institution.
3. The report is “substantially related to the employee’s current or potential job,” and the employer has provided written explanation of this to the employee.

Violating this law can result in a fine of up to $2,500 from the State Division of Labor.

New Mexico

As elsewhere, New Mexico has put in place its own set of laws regarding how employers can approach a criminal background check. The most notable features are:

• Employers cannot ask about a candidate’s criminal background in the initial stages of the hiring process; they must wait to perform a criminal background check until the candidate is in the final stages of consideration.
• Misdemeanor convictions that do not involve moral turpitude (such as fraud, drug trafficking, and espionage offenses), along with records of arrest that were not followed by a valid conviction, cannot be used in the question of employment.

As in Colorado, employers in New Mexico cannot request passwords to gain access to a potential employee’s social media accounts.

Kansas

By Kansas law, it is perfectly legal for an employer to make employment contingent on a criminal background check and require a candidate to sign a release. Whatever their decision, employers will not be held liable for any decision made, as long as that decision is based on the candidate’s trustworthiness, or the safety and well-being of customers and other employees.

Oklahoma

In an effort to promote fairer hiring processes, Oklahoma recently passed a law that made it illegal to ask whether or not someone is a felon on an application for employment. This legislation is commensurate with other state laws that prevent employers from automatically disqualifying someone based on their criminal record.

There are, of course, many more laws surrounding employment background checks in each state. If you have any questions about these or any others, feel free to reach out to us at Trusted Employees.