Background Check Compliance: A Complete Overview [2025]

Employment background checks can help companies in verifying the competence and qualifications of their new hires.

However, employers must comply with multiple laws when they conduct background checks or risk potential fines, penalties, and civil liability.

Background check compliance requirements vary from state to state, but several federal laws apply to all employers regardless of where they operate in the U.S.

Based on our extensive experience completing background checks for employers in every state, we have written this guide.

Federal Background Check Laws Requiring Compliance

FCRA Compliance

FCRA Overview and Requirements

The Fair Credit Reporting Act (FCRA) is a major consumer privacy law that protects consumers’ information when it is gathered, held, and reported by consumer reporting agencies (CRAs), including background check providers.

Both CRAs and employers must comply with the FCRA. This law includes a seven-year lookback provision that prohibits CRAs from reporting the following information to employers for positions paying less than $75,000 per year when the information is seven or more years old:

• Paid tax liens
• Arrests that didn’t result in convictions
• Chapter 13 bankruptcies (10 years for Chapter 7)
• Civil lawsuits
• Civil judgments
• Debt collection accounts

Employers also have several duties to comply with the FCRA.

Before conducting a background check, an employer must disclose their intention in writing on a standalone form and obtain the applicant’s or employee’s written, signed consent.

If a background check report reveals negative information about an applicant, the employer must complete the following steps of the adverse action process before deciding not to hire them based on that information:

1. Send a pre-adverse action letter – This letter should identify the negative information, include a copy of the background check report with the relevant information highlighted, and provide a deadline for the applicant to respond.

2. Give the applicant time to respond – Provide the applicant with a reasonable time to respond to the pre-adverse action letter, which is typically five business days.

The applicant can provide evidence the information is wrong or that they have been rehabilitated.

3. Send a final adverse action letter – If the employer decides not to hire the applicant after completing the adverse action steps, they should send a final adverse action letter and include a copy of the applicant’s rights under the FCRA.

FCRA Violations to Avoid

When an employer violates the FCRA, they can face penalties of up to $1,000 for each violation. The applicant or employee can file a lawsuit, and the employer might be liable for their resulting losses and attorney’s fees.

If the employer’s actions are deemed to be willful, punitive damages might also be ordered.

Some common violations employers must avoid include the following:

• Failing to provide a compliant disclosure
• Failing to obtain the applicant’s or employee’s signed, written consent before conducting the check
• Adverse action violations, including failing to complete the process or failing to notify an applicant of their right to challenge adverse information

Even technical violations might lead to substantial losses. For example, in Terrell v. Costco Wholesale Corp., Case No. C16-1415JLR (W.D. Wash. May. 16, 2017), the U.S. District Court for the Western District of Washington denied Costco’s motion to dismiss a putative class action lawsuit based on a lack of standing.

In that case, the plaintiff alleged Costco committed technical FCRA violations by including extra information on its disclosure form and failing to provide him with a summary of his FCRA rights.

Costco argued the lead plaintiffs suffered no real injury and thus lacked standing to sue. The federal court disagreed, denying Costco’s motion and remanding the case to the Washington Superior Court for further proceedings.

Costco subsequently settled the class action for almost $2.5 million.

However, recent decisions have been more favorable to employers. In Schumacher v. SC Data Ctr., Inc., No. 19-3266 (C.A. 8, 4/4/22), the 8th Circuit Court of Appeals held that a mere technical violation of the FCRA without a further adverse employment action does not confer standing to an applicant to sue.

In that case, the plaintiff did not disclose felony convictions on her application. The employer subsequently performed a background check, which revealed the applicant had felony convictions.

The employer withdrew the employment offer without providing the candidate a copy of the background check report so she could challenge the information.

While this is a procedural FCRA violation, the 8th Circuit held it wasn’t enough to provide the plaintiff with standing to sue since the employer stated it would have withdrawn the offer even if it had provided her with a copy of the report.

The information about her felony convictions was accurate, so she would not have had valid grounds to challenge it.

Despite this holding, it’s important for employers to fully comply with the FCRA, including its technical and procedural requirements. Courts have ruled in different ways, and there is no guarantee a court will not hold an employer liable for technical violations.

What Employers Must Do to Comply With the FCRA

To comply with the FCRA, employers should take the following actions:

• Provide applicants and employees with a disclosure that you conduct background checks. Ensure this notice is on a standalone form and is clear and conspicuous. Do not include extraneous information on the form about other things.
• Ask applicants to sign a written consent agreeing for you to conduct the background check. If an applicant refuses to sign the consent form, you can withdraw an employment offer.
• Work with a reliable background check provider like iprospectcheck to ensure your reports are FCRA-compliant, current, accurate, and comprehensive.
• If you discover negative information on a background check and decide not to hire an applicant, you must complete the adverse action process before making a final decision.
• First, send a pre-adverse action notice. This letter should detail the problematic information. Include a copy of the background check report section that contains this information, and explain that the candidate can challenge the information.
• Second, give the applicant a reasonable amount of time (generally five days) to respond with evidence the information is inaccurate or that the candidate has since rehabilitated.
• Finally, if you still don’t want to hire the applicant because of the background check report, send a final adverse action notice. This notice should include the name and contact information of the background check provider, a statement that the provider did not make the employment decision, a copy of the person’s rights under the FCRA, and a statement that the individual has a right to challenge the information.
• Retain copies of the adverse action notices and documentation of each compliance action you took in your records.

Title VII Compliance

Title VII Overview and Requirements

Title VII of the Civil Rights Act of 1964 is a leading anti-discrimination law that is enforced by the Equal Employment Opportunity Commission.

This law prohibits discrimination in employment based on the protected characteristics of applicants and employees and covers all aspects of the employment relationship from hiring to firing.

Two forms of discrimination are prohibited by Title VII, including:

• Disparate treatment – Discrimination against a protected group
• Disparate impact – Occurs when a facially neutral policy has a disparate impact on individuals within a protected group

The EEOC believes that the consideration of criminal history information can result in disparate impact discrimination against members of certain protected groups and has issued guidance for employers about how they should handle criminal record information revealed in background checks.

Title VII Violations to Avoid

Employers should avoid blanket policies not to hire applicants with criminal convictions.

Instead, they should individually assess convictions as they directly relate to the duties of the job for which the applicant is being considered.

While considering the relevance of the conviction to the job, the employer must consider the nature of the offense, its seriousness, how much time has elapsed since the conviction, and the nature of the job.

In Green v. Missouri Pacific Railway Company, 523 F.2D 1290 (8th Cir. 1975), the court held that a blanket policy prohibiting the hiring of anyone with a criminal conviction amounts to prima facie evidence that the company is engaging in racial discrimination.

This case outlined the Green factors employers should consider when they learn about conviction records, including the nature and severity of the offense, how much time has elapsed since the conviction, and the nature of the job.

A second case illustrates the importance of limiting the scope of criminal background checks for employment. In EEOC v. BMW Manufacturing Co., LLC, existing employees of a logistics firm hired by BMW were subjected to new background checks before they could enter BMW’s facilities in South Carolina.

While the logistic firm’s background checks only looked at criminal history information going back seven years, BMW’s criminal background checks considered convictions that occurred at any time. A large number of logistics employees were discovered to have old convictions and were terminated.

The court held that the background check policy had a disproportionate impact on Black workers since 80% who were terminated were Black.

BMW subsequently entered a consent decree under which the company agreed to pay the claimants $1.6 million to settle the case.

What Employers Should Do to Comply with Title VII

Employers should take the following actions to ensure compliance with Title VII and the EEOC’s enforcement guidance:

• Complete the same types of background checks on all applicants for similar jobs.
• Consider the Green factors if a background check reveals a criminal conviction before basing an adverse hiring decision on the criminal record information, including the nature and severity of the offense, how long ago the offense occurred, and the duties of the position.
• Conduct an individual assessment of an applicant’s conviction by asking them for more information to understand the context and allowing them to explain.
• Limit the scope of the criminal background check to only the past three to seven years to ensure the conviction information is relevant.
• Avoid asking about criminal convictions on job applications.
• Do not institute a blanket policy against hiring anyone with a criminal record.

Other Federal Laws Mandating Compliance

The applicability of other federal background check regulations and laws varies, depending on other factors such as the company’s geographic location and industry.

Fair Chance to Compete for Jobs Act (FCA) Overview and Compliance

The Fair Chance to Compete for Jobs Act is a relatively new federal law and applies to federal agencies and private companies seeking federal contracts.

This law is a ban-the-box law that controls when companies can ask for criminal history information.

Employers with federal contracts must wait to ask about an applicant’s criminal record until after extending a condition employment offer.

Federal agencies are prohibited from contracting with companies that inquire about criminal record information earlier in the hiring process.

Complying With the FCA

If your company is seeking a federal contract or already has one, you must comply with the FCA.

To do so, wait to complete criminal background checks until after you have made conditional job offers and have determined the applicants are otherwise qualified.

Remove any questions about criminal history from your job applications, and don’t ask about criminal record information during interviews or at any time before you make a job offer.

DOT/FMCSA Compliance for Safety-Sensitive Jobs

Employers regulated by any agency under the Department of Transportation, including the Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), National Highway Traffic Safety Administration (NHTSA), Federal Highway Administration (FHA), Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA), must comply with complex regulations when hiring people to fill safety-sensitive roles.

While the regulations vary by agency, DOT background checks typically require employers to take the following actions:

• Conduct thorough DOT background checks
• Require DOT physicals from approved providers
• Complete DOT drug tests
• Complete annual checks
• Conduct random drug tests of certain percentages of their workforce
• Conduct post-accident drug tests
• Adhere to the return-to-duty process for employees who fail drug tests

To ensure compliance, DOT-regulated employers should thoroughly review the regulations that apply to their industry and consult with legal counsel.

Location-Based Compliance Requirements

Companies face other requirements based on their location under state and local laws. Many state and local governments have passed ban-the-box laws, salary history bans, social media laws, clean slate laws, and credit history laws that affect companies when conducting background checks.

More recently, some states have passed marijuana laws that affect companies when conducting pre-employment drug screens.

Below, we’ll take a state-by-state look at background check compliance requirements employers must know.

Background Check Compliance by State

Alabama

Alabama primarily follows the FCRA and Title VII and has few state or local laws that affect employers conducting background checks.

However, there are two laws employers should know to ensure compliance.

City of Birmingham Ban-the-Box Compliance

The City of Birmingham has a ban-the-box ordinance that applies to public employers.

To comply, public employers should refrain from asking about criminal history information on their applications.

Alabama Redeemer Act Compliance

The Alabama Redeemer Act expanded the state’s expungement laws and allows individuals with certain misdemeanor or felony convictions to ask the court to expunge their criminal records.

Consumer reporting agencies (CRAs) can’t report expunged criminal records.

Employers cannot ask about expunged records or base employment decisions on any criminal record that has been expunged if they learn about it from any source.

Alaska

Alaska does not have state or local background laws that extend beyond the requirements of the FCRA, Title VII, and industry-specific federal regulations.

Employers should ensure compliance with the applicable federal laws to maintain compliance.

Arizona

Arizona has a few laws employers should know to ensure compliance in addition to complying with the FCRA and Title VII.

Expanded FCRA Disclosure Requirement for Compliance

Employers in all states in the Ninth Circuit, including Arizona, must comply with the Ninth Circuit’s holding in Gilberg v. Cal. Check Cashing Stores.

While the FCRA requires employers to provide notice to applicants about background checks on a standalone form, employers in Arizona and other Ninth Circuit states must provide two standalone forms, including one with information required by the FCRA and a second with information about the applicant’s rights under state-specific consent laws.

Arizona Civil Rights Act Compliance

The Arizona Civil Rights Act prohibits discrimination in employment based on the protected characteristics of applicants.

It also prohibits employers from asking about criminal convictions on job applications and is a fair chance hiring law.

An employer can ask about criminal convictions later in the hiring process but must clearly state the information about a conviction will not be used as the sole factor to deny employment.

Stringent Childcare Employer Background Check Requirements

Childcare employers, including daycares, licensed childcare facilities, home childcare facilities, group homes, and childcare referral and resource agencies, must comply with Arizona’s stringent background check requirements for childcare facilities.

To comply, employers must conduct fingerprint-based checks, abuse and neglect registry checks, criminal history checks, and sex offender registry checks in Arizona and every state in which the applicant or volunteer has previously lived or worked.

These checks must be completed before the applicant or volunteer can begin working, and they must be completed again every five years.

Arizona’s Record-Sealing Law and Employer Compliance

Arizona’s expanded record-sealing law was effective on Jan. 1, 2023. It allows people with convictions to petition the court to have their records sealed once a specific time has passed since they completed the terms and conditions of their sentence.

Consumer reporting agencies can’t report sealed convictions on background checks.

Employers can’t inquire about sealed criminal records or base employment decisions on a sealed record.

To comply with this law, employers should do the following:

• Remove any question about criminal convictions from the application
• Refrain from asking applicants whether they have any sealed convictions
• Work with a compliant background check provider
• Refrain from searching for criminal record information about an applicant from other sources

Marijuana Conviction Expungement and Compliance

Under ARS 36-2862, individuals with marijuana convictions or arrests for possessing less than two ounces of marijuana or cultivating six or fewer plants will now have them automatically expunged since they would not amount to crimes under current state law.

CRAs can’t report expunged marijuana convictions.

Employers can’t ask applicants if they have any expunged criminal convictions or base any employment decision on expunged records that they learn about from any source.

Arkansas

Arkansas employers must comply with the FCRA, Title VII, and any federal industry-specific rules that apply to them.

They must also comply with the following two laws:

Arkansas Social Media Law Compliance

Under Ark. Code Ann. § 11-2-124, employers are prohibited from asking applicants or employees for their social media passwords, access to their social media accounts, or their account information.

They also can’t deny employment to applicants because they refuse to provide passwords and other account information under the social media law.

To comply with this law, employers should take the following steps:

• Never ask an applicant or employee for their social media passwords.
• Refrain from asking about the social media accounts an applicant or employee has.
• Don’t ask an applicant or employee to access their social media accounts in the presence of the employer.
• Don’t refuse to hire an applicant who refuses to provide social media account information.
• Avoid asking applicants or employees to add the employer as a friend or contact to gain access to their social media accounts.

Record-Sealing Law and Compliance

Individuals with certain types of criminal records can ask the court to seal them under Ark. Code Ann. § 16-90-1417.

CRAs can’t report sealed records on employment background checks.

Employers can’t inquire about sealed records and applicants with sealed records are allowed to deny their existence.

California

In addition to complying with the FCRA and Title VII, California employers must comply with a complex set of state employment background check laws.

ICRAA Compliance

The Investigative Consumer Reporting Agencies Act (ICRAA) places stricter requirements on employers than the FCRA. Where the ICRAA’s requirements are more stringent, employers must follow the state law’s requirements.

Notably, the ICRAA places a seven-year lookback period on the reporting of conviction records for any job. The FCRA does not restrict the reporting of convictions and only restricts the reporting of other information for jobs paying less than $75,000 per year.

The ICRAA also includes multiple other disclosure requirements that employers should understand and implement.

CCRAA Compliance

The Consumer Credit Reporting Agencies Act (CCRAA) also applies to employers in California.

Under this law, credit reports and investigative consumer reports are considered to be background checks.

Employers may not charge applicants for credit reports or investigative reports under the CCRAA.

Expanded Privacy Protection Under CIPA and Compliance

The California Information Privacy Act (CIPA) provides expanded privacy protection beyond the FCRA.

To comply with CIPA, employers must do the following things:

• Provide a checkbox for applicants to opt in to receive copies of their background check reports
• Provide a clear, conspicuous notice in writing about the nature and scope of a background check that will be performed by a third-party provider
• Obtain the applicant’s written consent before initiating a background check
• When the third-party provider will interview the applicant’s references, the employer must explain the purpose, provide the applicant with the third-party provider’s contact information, give the applicant a summary of their rights to obtain a copy of the reports, provide a checkbox allowing applicants to request copies, and provide copies within three days to applicants who ask for them

Compliance with California Labor Code 432.7

Under Cal. Lab. Code 432.7, employers are prohibited from inquiring about an applicant’s sealed convictions, dismissed convictions, charges that didn’t result in convictions, or completion of pre- or post-trial diversion programs.

To comply, don’t ask about prohibited information, and do not base any employment decisions on these types of criminal records learned from any source.

Automatic Sealing of Felony Records and Employer Compliance

Under SB 731, individuals with certain non-violent, non-sex felony convictions will have them automatically sealed if the offense(s) happened after Jan. 1, 2005, four or more years have elapsed with no new convictions, and the individual completed the terms and conditions of their sentence.

Sealed records can’t be reported by CRAs on background checks, and employers can’t inquire about them or base employment decisions on them.

California Fair Chance Act and Employer Compliance

The California Fair Chance Act applies to all employers with five or more employees in the state unless an exception applies.

Under this law, employers can’t ask about an applicant’s criminal history until they have made a conditional offer of employment.

This prohibition includes inquiring about criminal history information from any source, including background checks, internet searches, or from others.

Employers are also prohibited from including statements in job advertisements that people with criminal records won’t be considered.

An employer must complete an individual assessment before denying employment to an applicant based on a criminal record, including a consideration of the nature of the offense, how much time has elapsed, and the duties of the job, which must be completed before sending an initial pre-adverse action notice.

The employer must give the applicant a reasonable time to respond. If they make a final decision not to hire the applicant, the employer must provide them with a notice of their rights, including the right to appeal to the CCRC.

Expungement and Compliance

California has an expungement law that allows individuals to petition the court to expunge conviction information from their records if they completed probation and did not serve time in prison.

Expunged records can’t be reported or inquired about. Applicants are legally allowed to deny the existence of an expunged conviction.

Compliance with California’s Clean Slate Law

Under California’s Clean Slate Law, the California Department of Justice must review court records every month and remove information about arrests not resulting in convictions within three years of the date of arrest.

The CDOJ must also expunge information about an individual’s completion of pre-trial diversion or drug diversion.

Individuals can also petition the court to withdraw guilty pleas to certain offenses and enter not-guilty pleas when they have been convicted of certain felony crimes.

The entry of a not-guilty plea means the conviction can’t be reported, and the individual can answer they do not have a felony conviction.

Compliance with California’s Marijuana Laws

Since California legalized recreational marijuana, the state has passed a couple of laws that employers must know.

Under AB 1793, certain marijuana convictions for possession or cultivation of marijuana for actions that would be legal under today’s recreational marijuana laws are automatically dismissed and sealed.

These sealed, dismissed convictions can’t be reported, and employers can’t base employment decisions on them.

Under AB 2188, which was effective as of Jan. 1, 2024, employers can’t discriminate against applicants or employees based on their use of marijuana outside of work.

This prohibition includes not acting on a positive drug test for marijuana that tests for non-psychoactive metabolites unless an exception applies.

Salary History Inquiry Ban

Under Cal. Lab. Code 432.3, employers are prohibited from inquiring about an applicant’s salary history or relying on that information to determine what salary to offer.

Compliance with California Consumer Credit Reporting Act

Under the California Consumer Credit Reporting Agencies Act (CCRAA), the state places strict limits on the use of credit reports when making employment decisions.

This law prohibits most employers from using credit reports or credit scores when making employment decisions unless an exception applies.

San Francisco Ban-the-Box

San Francisco has a municipal ban-the-box ordinance that applies to all employers with five or more employees and city contractors, subcontractors, and leaseholders.

Under this local law, employers can’t ask about convictions or arrests until after making a conditional employment offer. They also can never inquire about or consider any of the following things:

• Diversions and deferrals of judgment
• Arrests that didn’t result in convictions
• Expunged, dismissed, or otherwise inactive convictions
• Juvenile convictions
• Convictions for anything other than a misdemeanor or felony (infractions)
• Convictions older than seven years except for positions in the caring professions
• Decriminalized convictions, including those for marijuana

Los Angeles Ban-the-Box

Los Angeles has ban-the-box laws for both private employers and public employers. The private employer ban-the-box ordinance applies to employers with 10 or more employees that work two or more hours per week.

Private employers may not do any of the following things:

• Inquire about criminal history information on applications
• Ask about criminal history information before making a conditional employment offer
• Take an adverse employment action based on criminal history unless they have first conducted a written, individualized assessment of the conviction as it relates to the job

If an employer intends to take an adverse employment action based on a candidate’s conviction, they must first complete the fair chance process.

The public employer ban-the-box ordinance applies to city contractors and subcontractors with 10 or more employees.

City contractors and subcontractors can’t ask about criminal history information on their applications and must wait to do so until after they have extended conditional employment offers.

They can’t take adverse action against a candidate based on a conviction before they individually assess the information as it relates to the job.

If they intend to base an adverse employment action on a conviction, they must first complete the fair chance process.

Restriction on Use of Sex Offender Registry Information

Under Cal. Pen. Code section 209.46(l)(2)(E), the use of information contained in the sex offender registry for employment purposes is expressly prohibited unless an exception applies.

The statutory exceptions include the information’s use to protect a person at risk and for companies required by law or authorized to request criminal history information from the state, including businesses serving vulnerable populations and others.

Colorado

In Colorado, employers must comply with the FCRA and Title VII as well as state employment background check laws.

Ban-the-Box Compliance

Colorado has separate ban-the-box laws for public and private employers.

Public employers must comply with C.R.S. § 24-5-401, which prohibits them from inquiring about criminal history information on applications and restricts inquiries until after the employer has determined an applicant is a finalist for the job.

Private employers must comply with C.R.S. § 8-2-130, which is known as the Chance to Compete for Jobs Act.

Under this law, employers may not advertise that they will not hire applicants with convictions. They also can’t inquire about criminal history information on their job applications.

However, they can access an applicant’s background reports at any time during the hiring process after the initial application.

Compliance with Colorado’s Credit History Check Law

Colorado employers are restricted on when they can pull an applicant’s credit record for employment.

Under the Colorado Employment Opportunity Act, employers can only check an applicant’s credit under the following circumstances:

• The employer is a bank or another financial institution
• The credit check is required by state or federal law
• The credit report directly relates to the job

Employers must have a sincere reason for requesting a credit background check for employment and must state the purpose in writing to the applicant before completing the check.

Compliance with Colorado’s Seven-Year Rule and Clean Slate Laws

Colorado has a seven-year rule that restricts the reporting of arrests, indictments, and convictions that predate a background check by seven or more years.

The state also has a clean slate law with an effective date of July 1, 2024. Under the Colorado Clean Slate Act, the following will be automatically sealed once a certain time has passed:

• Civil infractions – Four years
• Misdemeanors and petty offenses – Seven years
• Felony convictions – 10 years

Any sealed convictions can’t be reported on background checks.

Employers can’t ask about sealed convictions or base employment decisions on them.

Equal Pay for Equal Work Act Compliance

The Equal Pay for Equal Work Act prohibits employers from paying employees differently based on gender or another protected characteristic.

To comply with this law, employers also may not ask about an applicant’s salary history or use their wage records to determine how much to offer in salary.

Employers must provide pay scales for job openings and inform existing employees about them internally.

Compliance with Colorado’s Social Media Law

Colorado has a social media law to protect the privacy of applicants and employees.

Under this law, employers may not ask applicants or employees for their social media passwords, usernames, or account information. They also can’t ask them to open their social media accounts in front of them or ask to be added to their contact or friends lists.

Connecticut

Connecticut employers must comply with the FCRA and Title VII along with the following state laws:

Compliance with Connecticut’s Ban the Box Law

Former Governor Dan Malloy signed Public Act No. 16-83 on Jan. 1, 2016, which was effective on Jan. 1, 2017.

This law is a pure ban-the-box law and prohibits private and public employers from inquiring about criminal history information on job applications.

Employers can’t ask about criminal history information until after the applicant has met the minimum qualifications for the job.

Complying with Law on Provisional Pardons and Certificates of Rehabilitation

Employers must also comply with Connecticut’s law on how to handle applicants who
present certificates of rehabilitation or provisional pardons for convictions.

They must presume the individual has been rehabilitated and can’t base a decision not to hire the applicant solely on the conviction for which the individual has received a certificate of rehabilitation or provisional pardon.

If the employer does decide to turn the applicant down, they must provide detailed information in writing about why they reached the decision.

Compliance with Salary History Inquiry Ban

Under 2018 Public Act No. 18-8, employers can’t ask about an applicant’s salary history or use it to make decisions about what salary to offer.

Compliance with Connecticut’s Ban-the-Box Provisions for Public Employers

Under C.G.S.A. § 31-51i, public employers are prohibited from asking about an applicant’s criminal convictions until after they have deemed them to be otherwise qualified.

The state and its agencies are prohibited from disclosing information about an applicant’s arrests not leading to convictions or erased records when an applicant applies for a job, license, registration, or certification.

Compliance with Prohibition on the Consideration of Arrests by State Agencies

Under C.G.S.A. § 46a-80, Connecticut prohibits state agencies from considering arrests not resulting in convictions when making employment decisions.

Ban on Consideration of Credit for Most Jobs

Connecticut prohibits most employers from considering an applicant’s credit history or score to make employment decisions under 2018 Public Act No. 11-233. An exception exists for banks and financial institutions.

Compliance with the Social Media Law

Employers can’t ask applicants or employees for their social media passwords or usernames, and they also can’t ask for applicants or employees to log into their social media accounts in the employer’s presence.

Finally, they can’t ask applicants or employees to add them to their contact lists to gain access to their accounts.

Compliance with Connecticut’s Erasure Law

Connecticut’s Erasure Law allows individuals to ask the courts to erase information about qualifying convictions and other criminal records.

CRAs can’t report erased records, and employers can’t ask about them or base employment decisions on convictions for which an applicant has obtained an order of erasure.

Delaware

In Delaware, employers must comply with the FCRA and Title VII as well as the following state background check laws:

• Salary history ban – Under 19 Del. Code §709B, employers are prohibited from asking applicants about their salary history information.
• Public employers’ ban-the-box law – Under 2014 HB 167, public employers can’t inquire about criminal history information on their applications or until after the applicant has been interviewed.
• Consideration of criminal records by public employers – Under 2014 HB 167, public employers can’t consider misdemeanors older than five years or felonies older than 10 years.
• Ban on polygraphs – Delaware bans the use of polygraphs by most employers other than law enforcement and security services agencies under 19 Del. Code § 704.
• Ban on social media requests – Under 19 Del. Code § 709A, Delaware prohibits employers from asking applicants or employees for their social media usernames or passwords, asking them to log into their accounts in the employer’s presence, or asking to be added to their friends’ lists.
• No consideration of or inquiry about expunged records – Under 11 Del. Code § 4372, applicants do not have to disclose expunged records, and employers can’t consider them or inquire about them. CRAs won’t report expunged records.

District of Columbia

While the District of Columbia is not a state, it’s still important for employers to understand the laws they must follow in addition to the FCRA, Title VII, and the FCA, including:

• DC ban-the-box law – Under the D.C. ban-the-box law, employers can’t inquire about criminal history information before making a conditional employment offer.
• New salary history ban – Under a law signed by Mayor Muriel Bowser on Jan. 12, 2024, employers must include pay ranges in their job advertisements and can’t ask about an applicant’s salary history information or consider it when making employment decisions.
• Fair Credit in Employment law – Under the DC Fair Credit in Employment law, most employers are prohibited from asking for or using credit information to make employment decisions unless an exception applies.

Florida

Employers in Florida must comply with the FCRA and Title VII as well as the following state laws:

• Convictions and public employment – Under §112.011, Fla. Stat. (2023), public employers can consider first-degree misdemeanors and felonies when making employment decisions but can’t consider lower-level convictions.
• Disqualification for public employment due to drug convictions – Under §775.16, Fla. Stat. (2023), individuals with felony drug trafficking or sales convictions are disqualified for public employment but can overcome the disqualification by completing the terms and conditions of their sentence and drug rehabilitation.
• Ban-the-box laws – Florida does not have a statewide ban-the-box law, but the City of Lakeland, Orange County, and the City of Gainesville have ban-the-box laws that control when covered employers can inquire about criminal history information. While Orange County and Lakeland only ban the box for public employers, Gainesville’s ordinance applies to public and private employers with 15 or more employees.
• Miya’s Law – This law was passed following the murder of a college student and mandates property managers and landlords to conduct 50-state criminal background and sex offender checks on applicants.
• E-verify required – § 448.095, Fla. Stat. (2023) requires private employers to either use E-verify or to gather the same documents as required by the U.S. Immigration and Citizenship Services (USCIS).

Georgia

In addition to complying with the FCRA and Title VII, Georgia employers must also comply with the following state laws:

• Disclosure requirement for convictions used in employment decisions – When a Georgia employer decides not to hire an applicant based on a criminal record, they must disclose that to the applicant and tell them the source of the information under OCGA § 35-3-34(3)(b).
• Ban-the-box law for public employers – Georgia’s state ban-the-box law applies to public employers and prohibits them from asking about criminal history information on applications.
• Ban on consideration of first offender information – Most employers in Georgia are prohibited from using first offender information when making employment decisions under OCGA § 42-8-60, but exceptions exist for daycares, K-12 schools, banks, nursing homes, and developmental disability service organizations.

Hawaii

In Hawaii, employers must comply with the FCRA and Title VII along with the following state laws:

• No inquiry about expunged records – Under Haw. Rev. Stat. §831-3.2, employers can’t inquire about expunged records, and applicants don’t have to disclose them.
• Reasonable relationship of convictions to job duties required – Employers can only consider convictions when making employment decisions that reasonably relate to the job duties under Haw. Rev. Stat. §378-2.5(a).
• Statewide ban-the-box law – Hawaii’s ban-the-box law applies to both public and private employers and prohibits asking about criminal history information until after a conditional job offer has been made.
• Seven-year lookback rule – Under Haw. Rev. Stat. §378-2.5(c), Hawaii has a five-year lookback period for the consideration of misdemeanors and seven years for the consideration of felonies, excluding periods of incarceration.
• Credit inquiries restricted – Under Haw. Rev. Stat. § 378-2.7, employers can only consider an applicant’s credit if it substantially relates to the job and can only ask for a credit check once they have made a conditional employment offer.
• Ban on salary history inquiries – Under Haw. Rev. Stat. § 378-2.4, employers can’t ask applicants for salary history information or use it to determine what salary to offer.

Idaho

Idaho employers must comply with the FCRA and Title VII, and they must also comply with the following state laws:

• Consent requirement for criminal records checks – Under Idaho Code § 67-3008, employers must obtain their applicants’ signed consent before they can request criminal records from government agencies.
• Compliance with the Idaho Fair Employment Practices Act – Employers must comply with the Fair Employment Practices Act when they discover criminal history information by considering the severity and nature of the offense, the time that has elapsed since the offense, and the number of convictions, and the conviction must be related to the job.

Illinois

In addition to complying with the FCRA and Title VII, Illinois employers must also comply with the following state laws:

• Employers can’t require applicants to pay for background checks – Under 820 ILCS 175/30, Employers are prohibited from asking applicants, including temporary workers or day laborers, to pay any portion of the cost of a background check.
• Illinois ban-the-box law for private employers – The Illinois Job Opportunities for Qualified Applicants Act applies to private employers with 15 or more employees and requires them to wait to check the criminal background of applicants until after they have made conditional job offers.
• Chicago additional restrictions on private employers – Under Chicago Executive Order N. 2018-1, employers may not inquire about salary history, screen applicants based on wage or salary history, or condition an interview or employment offer on its provision.
• Notice required before adverse action – Under 2021 SB 1488, employers must provide specific notice when they decide not to hire an applicant based on criminal convictions revealed in a background check. Before taking adverse action, they must notify the applicant and identify the disqualifying criminal convictions. The applicant must be given five business days to respond. Upon taking adverse action, the employer must identify the disqualifying criminal convictions and notify the applicant of their right to appeal and the right to file a complaint with the Illinois Department of Human Rights.
• Restriction on use of credit information – Under 820 ILCS 70, most employers may not request or obtain an applicant’s credit report unless an exemption exists.
• Social media privacy law – Under 2013 HB 3782, employers are prohibited from asking an applicant or employee for their social media account information or passwords, but it does not prohibit an employer from viewing an applicant’s publicly available social media information.
• Employers not to discriminate based on an applicant’s workers’ compensation claim history – Illinois employers are prohibited from inquiring about an applicant’s workers’ compensation claims history or discriminating against an applicant based on that information.
• Ban on use of expunged, sealed, erased, or pardoned records – Under Illinois’s expungement law, employers can’t consider or inquire about an applicant’s expunged, sealed, erased, or pardoned criminal records when making employment decisions.
• Use of criminal conviction information restricted – Under SB 1480, employers can’t consider convictions unless they substantially relate to the duties of the job.
• Criminal convictions must substantially relate to the job – A second law, the Employee Background Fairness Act, also restricts the use of criminal convictions by employers and states they must substantially relate to the job’s duties or pose a danger to safety before an employer can base a decision not to hire the applicant on the conviction.

Indiana

Indiana employers must comply with the FCRA and Title VII as well as the following state laws:

• Ban-the-box for public employers – Indiana has a ban-the-box law for public sector employers that prohibits questions about criminal history on applications.
• No local ban-the-box laws – Indiana prohibits counties and cities from enacting ban-the-box ordinances under IC § 22-2-17-3.

Iowa

Iowa employers must comply with the following state laws in addition to the FCRA and Title VII:

• Fingerprint-based background checks required for healthcare – Under Iowa Code §135C.33, healthcare employers must conduct fingerprint-based criminal background checks and abuse and neglect registry on all applicants.
• Fingerprint-based background checks required for law enforcement – Law enforcement agencies must also conduct state and federal fingerprint-based background checks on all applicants under Iowa Admin. Code §501-2.1(80B).
• Local ban-the-box laws – While there isn’t a statewide ban-the-box law, the cities of Waterloo and Des Moines have passed ban-the-box ordinances that require employers to wait until they have made conditional job offers before checking their applicant’s criminal records.
• Pay requirement – Employers can’t ask applicants or employees to pay for any portion of a background check and must instead pay the fees themselves under Iowa Code § 692.2(6)(b).

Kansas

Kansas employers must comply with the following state laws in addition to the FCRA and Title VII:

• Seven-year lookback period for convictions – Kansas has a seven-year lookback period for convictions, but it only applies to jobs paying less than $20,000 per year.
• Payment by employers required – Under K.S.A. §22-4710, employers can’t ask applicants or employees to pay for background checks and must instead pay the fees themselves.
• Ban-the-box law for executive branch agencies – Under Executive Order 18-12, executive branch agencies can’t ask about criminal history on their applications and must wait until later in the hiring process.
• Reasonable relationship of convictions required – Under K.S.A. §22-4710(f), employers can only consider convictions discovered on criminal background checks when they reasonably relate to the duties of the job.

Kentucky

In Kentucky, employers must comply with the following laws in addition to the federal FCRA and Title VII:

• Employers can’t require applicants to pay for background checks – Under KRS § 336.220, employers can’t require applicants to pay for medical examinations or any part of a background check.
• State ban-the-box law for executive branch agencies – Under an executive order, executive branch agencies can’t inquire about criminal history information on their applications and must wait until they have contacted the applicants to schedule interviews.
• Louisville ban-the-box law – Louisville passed a ban-the-box ordinance that prohibits city employers and their vendors from asking about criminal history on applications.

Louisiana

Louisiana employers must comply with the following laws in addition to the FCRA and Title VII:

• No payment for background checks – Under La. R.S. 23:897, employers can’t ask applicants to pay for any part of a background check, pre-employment drug test, or pre-employment physical.
• Social media privacy law – Under La. R.S. 51:1953, employers can’t ask for an applicant’s or employee’s social media account information, username, or password.
• State ban-the-box law for public employers – Under La. R.S. 42:1701, state agencies can’t ask about criminal history on their applications or inquire about it until after they have interviewed a candidate or have extended a conditional employment offer.
• New Orleans ban-the-box ordinance – The City of New Orleans has a ban-the-box law that applies to public employers and companies with city contracts and prohibits criminal history checks until after an applicant has been interviewed.
• New Orleans salary history inquiry ban – Under Executive Order MJL 17-01, city employers can’t inquire about their applicants’ salary histories.

Maine

Maine employers must comply with the FCRA, Title VII, and the following state laws:

• Submission of drug testing policies – Employers that want to conduct pre-employment drug tests must submit their policies to the state for approval under the Substance Use Testing Law.
• Use of drug tests for medical marijuana – Employers can’t use positive tests for marijuana to make employment decisions for applicants who have prescriptions for medical marijuana under 22 MRSA § 2430-C(3).
• Social media privacy law – Under 26 MRSA §616, employers can’t ask applicants or employees for their usernames or passwords, ask them to log into their social media accounts in their presence, or ask them to add the employer as a friend on social media.
• Public-sector ban-the-box law – State employers are prohibited from asking about criminal history information on their applications under 1.5 MRSA § 792. However, K-12 schools are excepted.
• Comprehensive background checks required for direct-contact workers – Companies hiring for positions through which employees will have direct contact with children, elderly adults, or other vulnerable populations must conduct comprehensive background checks, including criminal background checks, under 34-B MRSA §1225 and 22 MRSA §9054.

Maryland

Maryland employers must comply with the following laws in addition to the FCRA and Title VII:

• Seven-year lookback period for convictions – Maryland has a seven-year lookback period for reporting convictions under Md. Code Ann. § 14-1203, but it has a $20,000 salary cap and so doesn’t apply to most jobs.
• Applicant right to disclosure – Under Md. Code Ann. § 14-1204, applicants have a right to disclosure of their files, and employers must provide a written disclosure and a copy of the applicant’s rights within five days of receiving a written request.
• Restriction on use of credit reports – Employers can’t use credit reports to deny employment and must wait until after an applicant has been offered a job to request a credit history check under Md. Lab. & Emp. Code § 3-711 unless an exception applies.
• Ban-the-box law for public employers – Under 2012 SB 671, public employers can’t ask about criminal history information on their applications and must wait until after an applicant has been interviewed or provided with the opportunity to interview.
• Ban-the-box law for private employers – Under 2020 SB 839, employers with 15 or more employees can’t ask about criminal history information on their applications and must wait until after an applicant has been interviewed or provided with the opportunity to interview.
• Montgomery ban-the-box ordinance – The City of Montgomery expanded the city’s ban-the-box ordinance for private employers to include any employer with one or more employees and restricts them from asking questions about criminal history until after an opportunity to interview. Employers also can’t consider first misdemeanors older than three years or several other offenses.
• Social media privacy law – Under Md. Lab. & Emp. Code § 3-712, employers can’t ask applicants to disclose their social media passwords or usernames or to provide them with access in another way.

Massachusetts

Massachusetts employers must comply with the FCRA, Title VII, and the following state laws when conducting background checks:

• Time limit for reporting – Under M.G.L. ch.93 § 52, Massachusetts has a lookback period that has some key differences from the FCRA, including a seven-year lookback period for convictions and no salary cap. This means convictions older than seven years can’t be reported in Massachusetts regardless of salary.
• State adverse-action process – Under M.G.L. ch.93 § 62, the state requires employers to notify applicants within 10 days in writing when they decide not to hire based on information in a background check and to include the consumer reporting agency’s name, address, and phone number as well as a copy of the applicant’s rights.
• Salary history ban – Under the Massachusetts Pay Equity Act, employers are prohibited from inquiring about salary history or using it to screen applicants.
• Statewide ban-the-box law – Under M.G.L. ch.151-B §4, Massachusetts has a statewide ban-the-box law that applies to both public and private employers and prohibits them from including questions about criminal history on their applications.

Michigan

Michigan employers must comply with the following state laws in addition to the FCRA and Title VII:

• Ban on consideration of misdemeanor arrests – Under MCL § 37.2205a, employers can’t consider recent misdemeanor arrests, including those for which charges are still pending, when making employment decisions. However, they can consider felony arrests when charges remain pending.
• Salary history ban – Under Executive Directive 2019-10, Michigan employers may not inquire about salary history or perform searches to try to learn about it.
• Social media privacy law – Under MCL §§ 37.271 – 37.278, employers are prohibited from asking for the social media account information, user names, or passwords of employees or applicants, but an exception exists when an employer is investigating employee misconduct.

Minnesota

In Minnesota, employers must comply with the FCRA, Title VII, and the following state laws when conducting background checks:

• Statewide ban-the-box law – Minnesota has a ban-the-box law that applies to both public and private employers. It prohibits them from using an applicant’s criminal record as a preliminary disqualification and forbids employers from conducting criminal background checks until after the candidate has been interviewed.
• Twin Cities additional notification procedure – St. Paul and Minneapolis have local laws that require public employers to complete an additional notification process when an applicant is denied employment or a professional license, including providing them notice of their right to initiate a grievance procedure.

Mississippi

In Mississippi, employers must comply with the FCRA, Title VII, and the FCA, if applicable. The state doesn’t have a ban-the-box law, and the expungement law doesn’t forbid employers from inquiring about expunged records.

Missouri

In Missouri, employers must follow the FCRA, Title VII, and the following laws if they apply:

• Ban-the-box law for executive branch employers – Under Executive Order 16-04, public employers in the executive branch can’t ask about criminal history on their applications unless the people with convictions are expressly disqualified under state law.
• Kansas City and St. Louis ban-the-box laws – Kansas City and St. Louis each have ban-the-box laws that apply to public and private employers. In Kansas City, the ban-the-box law applies to employees with six employees while the St. Louis law applies to those with at least 10 employees. These laws prohibit inquiring about criminal history information until after an interview.

Montana

Montana employers must comply with the following state laws in addition to the FCRA and Title VII when conducting background checks:

• Seven-year reporting rule – Under Mont. Code Ann. § 31-3-112, Montana restricts the reporting of convictions older than seven years and does not have a salary cap exception.
• Employers to pay for background checks – Under Mont. Code Ann. § 39-2-301, employers must pay the cost of background checks and medical exams and can’t pass along the fees to applicants or employees.
• Social media privacy law – Mont. Code Ann. § 39-2-307 prohibits employers from asking applicants or employees for their social media account information, usernames, or passwords.

Nebraska

Nebraska employers must comply with the FCRA, Title VII, and the following state laws when conducting background checks:

• Ban-the-box law for public employers – Neb. Rev. Stat. § 48-202 is a ban-the-box law that prohibits public employers from asking about criminal history on their applications. They must wait to inquire until they have determined the applicant meets the minimum qualifications for the job.
• Social media privacy law – The Workplace Privacy Act is a social media privacy law that prohibits employers from asking for an applicant’s social media account information, including usernames or passwords. They also can’t ask applicants to log into their accounts in the employer’s presence.

Nevada

Nevada employers must be aware of multiple state laws when conducting pre-employment background checks, including:

• Time limit for reporting information – Nevada has a law that includes a lookback period that restricts the reporting of information about criminal proceedings other than convictions older than seven years, civil judgments older than seven years, and bankruptcies older than 10 years. Unlike the FCRA, Nevada’s law does not have a salary cap exception.
• Seven-year restriction on conviction information removed – Under 2015 NV SB 409, the previous seven-year restriction on the reporting of convictions was removed. There is currently no time limitation on the reporting of convictions in the state.
• Record-sealing law – Under NRS 179.245, individuals with certain criminal convictions can petition the court to have their records sealed after the required time has elapsed. Sealed records can’t be reported on employment background checks.
• Use of credit reports – Under NRS 613.570, most employers can’t base adverse employment decisions on an applicant’s or employee’s credit report and must obtain their consent before requesting a credit check. However, some employers are excepted.
• Prohibition on use of sex offender searches – Under Nevada law, employers are prohibited from using information obtained from a search of Nevada’s sex offender public notification website for any employment-related purposes.
• Social media privacy law – Under AB 101, employers are prohibited from asking applicants or employees for their social media account information, passwords, or usernames.
• Salary history ban – Under 2021 Nevada SB 293, employers are prohibited from inquiring about an applicant’s salary history or using the information if an applicant voluntarily discloses it.

New Hampshire

In New Hampshire, employers must comply with the following laws in addition to the FCRA and Title VII when conducting background checks:

• Seven-year lookback period for convictions – Under N.H. Rev. Stat. Ann. § 359-B:5, New Hampshire restricts the reporting of criminal convictions older than seven years. However, this law has a $20,000 salary cap exception, which means it doesn’t apply to most jobs.
• Prohibition against asking about annulled crimes – Under N.H. Rev. Stat. Ann. § 651:5(x)(c), individuals who have successfully petitioned the court to annul their convictions don’t have to report them, and employers can’t ask if an applicant has any annulled offenses.
• Ban-the-box for public employers – Under 2020 HB 253, New Hampshire has a ban-the-box law for public employers that prohibits them from asking about an applicant’s criminal history before the applicant has been interviewed.

New Jersey

New Jersey employers must comply with the following state laws in addition to the FCRA and Title VII when conducting background checks:

• New Jersey ban-the-box law – New Jersey has a ban-the-box law that applies to public employers and private employers with 15 or more employees. This law prohibits employers from asking about criminal history information before an applicant has been interviewed.
• New Jersey Clean Slate Law – The Clean Slate Law allows individuals with most types of criminal convictions to ask the court for an expungement after 10 years (other than for sex offenses and violent crimes). Expunged records can’t be reported, and employers can’t rely on them to make employment decisions.
• Notice requirement – Under N.J.S.A. 56:11-33, employers must provide advance notice to applicants before initiating a background check and must inform them of their rights.
• Notice required before adverse action – Under N.J.S.A. 56:11-31, employers that intend to take adverse action against an applicant or employee must provide them with advance notice and include a copy of their rights under the FCRA and state law as well as a copy of their background check report.
• Salary history inquiry ban – Under 2018 Executive Order No. 1, state agencies are prohibited from asking about the salary history of an applicant.
• Social media privacy law – Under N.J.S.A. 34:6B-5 et seq., employers are prohibited from asking for an applicant’s or employee’s social media account information or trying to access it in any way.

New Mexico

New Mexico employers must comply with multiple state laws when conducting background checks, including:

• Seven-year reporting rule – Under N.M. Stat. § 56-3-6, CRAs can’t report convictions older than seven years or credit information older than seven years or the state’s statute of limitations. Unlike the FCRA, New Mexico’s state law does not have a salary cap exception.
• Required notice of rights – Under N.M. Stat. § 56-3A-4, when employers are required to provide a notice of an applicant’s FCRA rights, they must also provide them with a notice of their right to request a security freeze or removal of information from their reports.
• Ban-the-box laws – New Mexico has separate ban-the-box laws for public and private employers. For public employers, the law prohibits them from considering convictions until after an applicant has become a finalist for a job. For private employers, the law prohibits them from inquiring about criminal records in the initial application phases, but they can ask about convictions before an applicant is considered a finalist.
• Social media privacy law – Under N.M. Stat. § 50-4-34, employers are prohibited from asking applicants or employees for their social media account information, usernames, and passwords, or to be granted access.
• Cannabis expungement law – Under New Mexico’s cannabis conviction expungement law, expunged cannabis convictions can’t be reported or used for employment purposes.
• Expungement law – Under the Crime Records Expungement Act, individuals who receive expungements of convictions do not have to disclose them, and they can’t be reported by CRAs even if they occurred within the past seven years.

New York

New York employers must comply with multiple state and local laws when conducting background checks, including:

• New York State reporting restriction – Under NY Gen Bus L § 380-J, CRAs can’t report arrests not resulting in convictions other than for pending cases, addiction records for alcohol or drugs older than seven years, retail thefts lacking signed statements and non-coerced confessions, mental institution confinement periods older than seven years, or satisfied civil judgments older than five years. There is also a prohibition on reporting criminal convictions older than seven years, but only for jobs paying less than $25,000.
• Discrimination based on criminal convictions banned – Under NY Corr L § 752, employers can’t discriminate against an applicant based on a conviction unless it reasonably relates to the duties of the job.
• Expanded Fair Chance Act in New York City – Under recent expansions of the city’s Fair Chance Act, employers must conduct two separate background checks. A criminal background check can’t be completed until after a conditional employment offer has been made.
• New York City prohibition on discrimination based on convictions – Under NY Corr. L. Art. 23-A, employers can’t discriminate against applicants based on convictions.
• Buffalo ban-the-box ordinance – Under Buffalo City Code § 154-25, employers can’t inquire about convictions until after an applicant’s initial interview.
• Rochester ban-the-box ordinance – Rochester employers can’t ask about criminal history information until after an applicant’s first interview.
• New York City ban on credit checks for employment – In NYC, employers can’t conduct credit checks on applicants unless they are required by law.

North Carolina

North Carolina employers must comply with the following state laws in addition to the FCRA and Title VII:

• Background checks required – Under NC Code § 122C-80, employers in certain industries are required to conduct criminal background checks for employment, including those serving members of vulnerable populations.
• Ban-the-box law for state employers – Under Executive Order 158, state agencies can’t complete criminal background checks until after an applicant has had an initial interview.

North Dakota

North Dakota employers must comply with the following state laws in addition to the FCRA and Title VII when conducting background checks:

• Public employer ban-the-box law – Under N.D. Cent. Code § 12.1-33.02.2, public employers can’t inquire about an applicant’s criminal history until they have been invited to an interview.
• North Dakota sealed records law – Under N.D. Cent. Code § 12-60.1-02, individuals who successfully petition the court to seal their criminal records don’t have to disclose them. They also can’t be reported, and employers can’t ask about sealed records.

Ohio

Employers in Ohio must primarily follow the FCRA and Title VII when conducting pre-employment background checks. However, they must also comply with the following two laws if applicable:

• Public sector ban-the-box law – Under 2015 Policy HR-29, public employers can’t ask about criminal history information on their applications.
• Disclosure of felony convictions – Under 2023 Policy HR-29, applicants for public sector jobs can voluntarily disclose felony convictions at any time. During an interview, public employers must ask whether an applicant has any felony convictions. State agencies must complete criminal background checks of all applicants selected as finalists.
• Effect of expungement – Under ORC § 2953.32, applicants who successfully petition the court for expungement of their criminal records do not have to disclose them, and employers are prohibited from inquiring about or considering expunged criminal records.

Oklahoma

Oklahoma employers must comply with the following state laws in addition to the FCRA and Title VII:

• Employer to pay for pre-employment drug screens – Under Okla. Stat. §40-556, employers are prohibited from asking applicants to pay for pre-employment drug screens.
• Employer to pay for medical exams – Under Okla. Stat. §40-191, employers can’t ask applicants to pay for pre-employment medical exams.
• Social media privacy law – Okla. Stat. §40-173.2 prohibits employers from asking applicants or employees for their social media passwords, user names, or account information.
• Effect of expungement – Okla. Stat. §22-19 prohibits employers from asking about expunged criminal records.
• Special notice requirement – Under Okla. Stat. §24-148, Oklahoma employers must provide a special notice to applicants with a checkbox before conducting background checks. If the box is checked, the CRA must send a copy of the report directly to the applicant.
• Public employer ban-the-box law – 2016 Executive Order No. 1023 is a ban-the-box law for public employers that forbids asking about criminal history on applications.

Oregon

In Oregon, employers must comply with the following laws in addition to federal laws:

• Ban-the-box law – Oregon’s ban-the-box law applies to both public and private employers and prohibits employers from asking about criminal history on job applications. Employers also can’t discriminate against an applicant in an interview solely based on a conviction.
• Social media privacy law – Under ORS §659A.330, employers can’t ask employees or applicants for access to their social media accounts, for their passwords or usernames, to add the employer as their friend, or to open the applicant’s or employee’s accounts in front of the employer. Employers also can’t require applicants or employees to open social media accounts or advertise the employer’s business on social media.
• Use of credit reports restricted – Under ORS §639A.320, employers are prohibited from requesting credit reports or using an applicant’s or employee’s credit information to make employment decisions unless the information is substantially related to the duties of the job.
• “Substantially related” defined – For purposes of the use of credit information restriction, OAR Code 839-005-0080 defines substantially related to the job as a position that requires the individual to access financial information beyond what is required in retail jobs such as processing loans or extending credit or when a credit report is necessary for obtaining a bond or insurance.
• Salary history ban – Under the Oregon Equal Pay Law, employers can’t ask for an applicant’s salary history or otherwise seek it, but they can confirm an individual’s former salary after making a job offer that includes a salary offer.
• Portland ban-the-box ordinance – Under Portland’s ban-the-box ordinance, employers can’t ask for or consider an applicant’s criminal record until after they have extended a conditional job offer. They also can’t consider arrests that didn’t result in convictions, deferred adjudications, or expunged convictions. Employers must individually assess convictions, notify the applicant if they base a decision not to hire them on a conviction, and provide a copy of the individual’s record and report that resulted in the decision.

Pennsylvania

Pennsylvania employers must comply with the following state laws in addition to Title VII and the FCRA when conducting background checks:

• Use of criminal record information – Under 18 Pa.C.S. § 9125, employers can only consider criminal conviction information if the conviction directly relates to the job or the applicant’s suitability. If an employer denies employment based on a conviction, they must notify the applicant of the reason why.
• Ban-the-box policy for public employers – Under HR Policy TM-0001, state agencies must wait to inquire about criminal record information until after they have extended conditional job offers.
• Pennsylvania limited access law – 18 Pa.C.S. § 9122.2 allows individuals with misdemeanor convictions older than 10 years to ask for limited access. If it is granted, limited access records can’t be reported on background checks.
• Philadelphia credit history check ban – Under Philadelphia Code §9-1130, most employers are prohibited from performing credit checks on applicants or considering credit information to make employment decisions.
• Philadelphia ban-the-box ordinance – Under Philadelphia’s ban-the-box ordinance, city employers and private employers with 10 or more employees can’t ask about criminal history on applications or during the initial interview, and they can never ask about arrests not resulting in convictions.
• Use of salary history information – While employers can ask about salary history during interviews, they can’t use it to pay applicants lower salaries. In Pittsburgh, employers can’t ask about wage information until after making a conditional employment offer. In Philadelphia, employers are also prohibited from inquiring about salary history.
• School pre-employment background checks required – Under state law, all school applicants that will have direct contact with children must undergo extensive background checks.
• Ban on pre-employment marijuana testing in Philadelphia – Philadelphia passed a ban on pre-employment testing for marijuana unless an exception applies.

Rhode Island

Rhode Island employers must comply with the following laws when conducting background checks:

• Ban-the-box law – Under 28 R.I. Gen. Laws § 28-5-7, private and public employers are prohibited from inquiring about criminal history information until after interviewing a candidate.
• Credit report use restrictions – Under 6 R.I. Gen. Laws § 6-13.1-21, must notify applicants that they intend to complete a credit check before doing so and must notify an applicant of the reason a job is denied if it is based on information contained in the credit report.
• Social media privacy law – Employers are prohibited in 28 R.I. § 28-56-2 from asking for an applicant’s or employee’s social media passwords, usernames, or account information.
• Effect of expungement – Under 12 R.I. Gen. Laws § 12-1.3-4, individuals who receive expungements of their criminal records do not have to disclose them, and CRAs can’t report expunged criminal records.

South Carolina

In South Carolina, employers must comply with the FCRA, Title VII, and the following state laws:

• Effect of expungement – Under S.C. Code Ann. § 17-22-960, employers can’t inquire about expunged records or use information about them to make employment decisions.
• Consideration of pardons by child welfare agencies – Under SC Code Ann. § 63-11-70, child welfare agencies can’t consider pardons when making employment decisions, but they must consider the circumstances surrounding the pardoned offense and will need to conduct investigations.

South Dakota

South Dakota employers need to be aware of the following state laws when conducting background checks:

• Automatic removal of convictions – Under SDCL § 23A-3-34, individuals with convictions for class 2 misdemeanors or petty offenses will have them automatically removed from their records after five years. At that point, these convictions can’t be reported.
• Expungement of diversions – Under SDCL § 23A-3-35, people who complete diversionary sentences can have them expunged from their criminal records. Expunged records are not reported on background checks.
• Licensure by endorsement – Under 2021 HB-1077, professionals who work in jobs requiring licensure can obtain a license by endorsement based on their professional license in another state. This makes it important for employers to request professional license verifications in all states in which an applicant has lived and worked.

Tennessee

In Tennessee, employers must comply with the following laws when conducting background checks:

• Public employer ban-the-box law – Public employers must comply with Senate Bill 2440. This law prohibits employers from asking about criminal history on their applications or from conducting criminal background checks during the early phases of the hiring process.
• Social media privacy law – Under Tenn. Code. Ann. § 50-1-1003, employers can’t ask applicants or employees for their social media account information, usernames, or passwords, and they also can’t ask to be added to their friends lists to gain access to their accounts.

Texas

Texas employers must follow the FCRA and Title VII when conducting background checks. There are a few state laws they should also know, including:

• Preemption of ban-the-box laws with the Texas Regulatory Consistency Act – Passed in 2023, this law prohibits local governments from enacting ordinances that go further than what is provided in state law, which has resulted in ban-the-box laws in multiple cities being preempted.
• Expunctions and non-disclosure orders – Texas’s expunction law is quite limited and only allows people who have completed deferred sentences to class C misdemeanors, those with convictions for certain weapons offenses before 2021, and those whose misdemeanor or felony charges were dismissed to obtain expunctions. however, The state also allows people with certain convictions to request an order of non-disclosure. Non-disclosed or expunged records won’t be reported on background checks.
• Reporting lookback period – Under Tex. Bus. & Com. Code § 20.05, the state has a seven-year restriction on the reporting of multiple types of background information similar to the FCRA. However, the state’s law also includes a prohibition on reporting older convictions, which the FCRA does not. Since this law was passed after the FCRA, the FCRA preempted it.

Utah

Utah employers must comply with the FCRA, Title VII, and the following state laws when conducting background checks:

• Public employer ban-the-box law – Utah has a ban-the-box law that applies to government employers and prohibits them from asking about criminal history until after they have interviewed the candidate.
• Criminal investigations law – Most employers in Utah can’t conduct criminal background checks through the state and must instead complete FBI background checks to obtain the information under the state’s Criminal Investigations and Technical Services Act.

Vermont

In Vermont, employers must comply with the following state laws in addition to the FCRA and Title VII:

• Consent requirement – Employers must obtain written consent before initiating a background check.
• Employer to pay for background checks – Under 20 Vt. Stat. Ann. § 2056c, employers can’t ask applicants to pay for background checks.
• Ban-the-box law – Under 21 Vt. Stat. Ann. § 495j, employers can’t ask about an applicant’s criminal history until after an interview and a determination they are otherwise qualified.
• Ban on polygraph use – Under 21 Vt. Stat. Ann. § 494a, employers are prohibited from requiring polygraphs as a condition of employment unless an exception applies.
• Credit report use restrictions – Most employers are prohibited from checking the credit of applicants or using credit reports to make employment decisions other than certain excepted industries.
• Social media privacy law – Under 21 Vt. Stat. Ann. § 495l, employers are prohibited from asking for an applicant’s or employee’s social media account information, usernames, or passwords and can’t access their accounts through other means.
• Salary history inquiry ban – Under 21 Vt. Stat. Ann. § 495m, employers are not allowed to inquire about an applicant’s salary history or to use that information to make employment decisions.
• Timing of pre-employment drug tests – Employers that want to conduct pre-employment drug tests must wait until after making an offer of employment and must give the applicant a list of the drugs for which they will be tested.
• Effect of expungement – Under 13 Vt. Stat. Ann. § 7606, expunged records won’t be reported, individuals don’t have to disclose them, and employers can’t ask about them.

Virginia

Virginia employers must comply with the FCRA, Title VII, and the following state laws when conducting background checks:

• Social media privacy law – Under Virginia’s social media privacy law, employers can’t ask applicants or employees for their social media usernames or passwords, ask them to open their accounts in their presence, or ask to be added to the applicant’s or employee’s social media contact lists.
• Ban-the-box laws – Virginia has two ban-the-box laws. Under Executive Order 41, public employers can’t ask about criminal history on their applications. Va. Code Ann. § 19.2-389.3 applies to both public and private employers and prohibits them from asking about arrests for simple possession or convictions for simple possession of marijuana.

Washington, D.C.

While the District of Columbia is not a state, it’s still important for employers to understand the laws they must follow in addition to the FCRA, Title VII, and the FCA, including:

• Employer can’t require payment for background checks – Under D.C. Law 20-152, employers can’t require applicants to pay for any portion of a background check.
• DC ban-the-box law – Under the D.C. ban-the-box law, employers can’t inquire about criminal history information before making a conditional employment offer.
• Fair Credit in Employment law – Under the DC Fair Credit in Employment law, most employers are prohibited from asking for or using credit information to make employment decisions unless an exception applies.
• New salary history ban – Under a law signed by Mayor Muriel Bowser on Jan. 12, 2024, employers must include pay ranges in their job advertisements and can’t ask about an applicant’s salary history information or consider it when making employment decisions.

West Virginia

In West Virginia, employers must comply with the following state laws in addition to the FCRA and Title VII:

• Social media privacy law – The state’s social media privacy law prohibits employers from asking or coercing employees to provide their social media account information, usernames, or passwords.
• Effect of expungement – Under W. Va. Code §61-11-26, individuals with certain convictions can ask for expungement after a waiting period that might be significantly less than seven years. If a record is expunged, it won’t be reported, and the employer can’t inquire about it.
• Discrimination against medical marijuana users prohibited – Under W.Va. Code §16A-15-4, employers can’t discriminate against applicants or employees based on the fact that they are medical marijuana users.

Wisconsin

In Wisconsin, employers must comply with the following state laws when conducting background checks:

• Public employer ban-the-box law – Under 2015 AB 373, public employers can’t ask about criminal history information on job applications.
• Ongoing caregiver background checks required – Employers hiring caregivers must conduct caregiver background checks every four years after they are hired and before hiring them.
• Individual assessments required – Employers must individually assess conviction information as it relates to the job and can’t discriminate against applicants solely based on having a criminal record.
• Social media privacy law – Employers are prohibited from asking for social media usernames or passwords from applicants or employees, making them log into their accounts in their presence, or asking to be added as friends.

Wyoming

Wyoming employers must comply with the FCRA and Title VII. The only state law they must follow requires them to pay for any pre-employment drug or clinical tests.

You Can Trust iprospectcheck for Compliant Background Checks

Navigating compliance issues during the hiring process can be complex and daunting for most employers.

However, employers must ensure they follow local, state, and federal laws when conducting background checks to avoid substantial penalties, fines, and legal liability.

At iprospectcheck, we stay up-to-date with changes in the law as they occur to always ensure our background checks remain legally compliant.

To learn more about our background check services and how we can help with compliance, call us for a free quote today: (888) 509-1979.

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.