Curiosity killed the cat. . .

sonny · January 2003

I am wondering how many years do you all go back when checking criminal records during a background check? My understanding that in Calif. you are limited by law to 7 but that in other states there is no restriction.

watrsflo · January 2003

In my work, we go back to the applicant's age of 18 years -- the age at which any juvenile record would ordinarily be expunged. Keep in mind, I'm in an unusual line of business: Corrections (i.e., Prisons).

Don D · January 2003

We contract this out to a local company. The check they run will include anything on the prospect's record and I assume that's anything not expunged or concealed by the youth courts. Things roll off the MVR after several years, but it's my understanding that the criminal history record remains. I wonder why California would have such a law? There's a bill in the Mississippi Legislature this week which, if passed and signed into law, will prohibit employers from asking on an application if one has been convicted of a crime. What an absolutely insane law to try and pass.

Gillian · January 2003

I have done a quick review of my reference material and I don't find anything relating to seven years in California and that's where I am.

sonny · January 2003

Hmm, thanks guys. We use a company out of California and that was what they told me. We have an applicant who offered to us a felony record (also pardoned) back in the 70's. Back ground didn't show it, which is what started the debate, How far should we go back? He has a clean record ever since. That started debate #2 How long do you hold it against someone? It was related to drugs when he was in his 20's. He is applying for an entry level laborer position. I felt it should no longer be an issue, being it was over 20 years ago. Others felt it still needed specail approval from on high. So am I a bleeding heart or are others a bit obssessive? I will check Gillian and see where our vendor was quoting. Thanks again for input.

Gillian · January 2003

No, I think that somewhere along the line, old offenses should not be held against someone. I expect "old" will vary according to the circumstances.

Don D · January 2003

I think where I might differ from a legislative mentality that thinks they must protect the populace from the unscrupulous employer is that I feel the record should speak for itself and it should be a hiring authority's call whether or not or how to judge the conviction record. I think I mentioned earlier that there is a bill in our legislature as we speak that would prohibit an employer from even making such an inquiry. Things are getting dangerouser and dangerouser as Yogi Berra might say.

Nurse Recruiter · January 2003

I don't think you are a bleeding heart. You are right, at some point it does not apply. Our company that gathers background info gives us anything that comes up on the person, so we also get lots of old info. Our rule of thumb is if they are not currently under sentence (some of the deferred and suspended sentences go on a long time!) and the conviction is not directly related to the job we are hiring them for and does not pose a risk to our patients, we overlook it.

Eliant · January 2003

I'm in California, and I'm trying to quote were I read this (Ican't find it now.) But, in California you can only go back 7 years. There was a new change in the law regarding background check in California (effective 1/1/03). You can always find someone who will cross the line but is it legal? In my last two employers we outsource this task and both only provided seven years.

Gillian · January 2003

Please let us know if you find it. I went through my material again and still can't find any reference to seven years as an employer requirement.

sonny · January 2003

Gillian and any others who are interested:

I received a summary from our California vendor "There is a 7 year limitation relating to the dissemination of criminal record information as well as other derogatory findings. There are exceptions to this law depending on the industry and relationship to government agencies that employers may have."

The hand out advises to review the California Civil Service section 1786.10-1786.40, but also mentions Californa Laws AB 1068 and AB 2868. Hope this helps. Thanks again for all of your input.

Gillian · January 2003

Got it, or at least part of it. Thanks. My write - up on AB1068 focuses on the employer obligations which deal with disclosure and privacy. There must be other parts which regulate the vendors of the information. I'll have to look for the others, they are not on my list of new California laws for 2003. I have a hunch that they also are focused on vendors, not us the buyers. Thanks again.

Don D · January 2003

Gillian: Please post what you find out. I have ees in California also who work out of their car, house, yacht...whatever they live in out there. Don

blw · January 2003

Ours are processed by the TX Dept of Protective and Regulatory services and they get "everything" even juvenile records. We provide child care services and that is why it is so comprehensive. Certain convictions don't allow a person to work in the field ever. However, the state tells us if someone can be considered for a "risk evaluation" and then allowed to work with the children. These are ususally drug charges, shoplifting, hot checks, etc. We often choose to do the risk eval and keep the person employed. I do believe that people should be given second chances when they show they have "cleaned up their act".
Barbara

Gillian · January 2003

OK, here's the skinny on AB 2868. It too, is focused on the provider of reports. The reports may not contain information about criminal records or other adverse information that is over seven years old. I don't know how to find civil service codes and don't need them because they do not cover us.

Don D · January 2003

I wonder if that would mean a provider of reports who happened to be a prior employer could not reveal to you certain information that was over 7 years old in the applicant's actual work background. Interesting.

Gillian · January 2003

No, it is focused on the supplier of reports - IRCA's as they are referenced - investigative consumer reporting agency.

Don D · January 2003

Aha; I may have you here Gillian. What if I use a supplier, an IRCA as it were, to run all my background checks?

Gillian · January 2003

No, you don't. The IRCA will only give you what they, by law, can give you - seven years of information. You will be just the recipient of their lawfully provided information - assuming that they follow the law, of course.

tvanostran · January 2003

There are provisions under 1068 that would apply to employers that are conducting their own ICR (Investigative Consumer Report) versus enlisting the services of an Consumer Reporting Agency. If you are conducting these types of indepth background checks, you might want to review 1068 closely. We've had to make some modifications to our release/authorization form as a result.

Re: Criminal Background checks, following is an excerpt from the Chamber of Commerce in CA:

"Criminal Records
You may not ask job applicants to disclose information concerning an arrest or detention not resulting in conviction, or information relating to a referral to or participation in a criminal diversion program (work or education program as part of probation). You may not seek the same information from any other source, nor use it as a factor in decisions related to hiring, promotion, training, or termination. However, you may ask employees and applicants about any arrest for which employee or applicant is out on bail or out on his/her own recognizance pending trial.1 Certain exceptions exist for peace officers, health care workers, and persons with access to drugs and medication.2 In addition, you may not inquire about convictions for most marijuana possession offenses more than two years old.3

Under federal and state law, you may inquire about criminal convictions of applicants, and can deny employment upon establishment of a legitimate business purpose. However, you should avoid a rule that automatically bars employment to any applicant who has a record of criminal conviction. Such a policy may violate California law if the conviction is not job-related and the policy has a disparate impact upon a protected class."

I know in Hawaii you cannot run background checks on applicants, period. You can make an offer contingent on a clear background check, but you cannot run a single check until the offer has been accepted. Our counsel has advised us against running credit checks, which we do elsewhere, because we are not in a banking industry so the courts have found it unapplicable.

FYI! Tracy

Don D · January 2003

[font size="1" color="#FF0000"]LAST EDITED ON 01-31-03 AT 08:08AM (CST)[/font][p]So now the California Chamber of Commerce is into legislation and enforcement. I smile at their suggestion that "However you should avoid a rule...". What's up with that? A Chamber of Commerce has absolutely no business trying to dictate to the employer community how they should run their business. Reminding the employer community of laws and regulations is one thing, and a Chamber should be about doing that, but, making 'suggestions' as to employer rules and policies? I think not. I also note the passage starts with the language, "...arrest or detention not resulting in conviction..." and what I read in your post addresses things that perhaps might occur PRIOR TO conviction. Certainly none of us asks applicants about arrests or detentions. I've not seen an application in many years that addresses anything other than convictions. I'm wondering how long it will be before 'Persons convicted of Crimes' will be appended to Title VII as a protected status group. On a humorous note, but totally seriously, in my last life with a large refrigerated trucking company, the manual that our recruiters used included these mandatory questions: (1) "What is the largest amount of marijuana you have ever purchased?", (2) "Have you ever claimed that a positive drug test was due to second hand smoke?"

tvanostran · January 2003

Don - I don't know if you're doing business in California or not, but I have to tell you that the C of C in CA is actually a wonderful resource for employers. I know where you're coming from; I cover a number of states and have found NONE that even hold a candle to the CA chamber. They are actually very well respected by employers and counsel alike. There isn't a state agency that provides the same amount of applicable information. This is vital in a state that has passed a plethora of state laws that are more expansive, and in some cases contradictory to federal law. They have a team of attorneys (that specialize in CA employment law) that they consult, and this team actually writes most of their material. The C of C merely makes it available to employers. If you have any employees in CA I suggest you make yourself familiar with the CA Chamber.

Curiosity killed the cat. . .

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