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When pulling a background check is it not law an employer can only go back 7 years or is this a guideline only?

San Diego, CA |

I have a felony from 11 years ago different state. It seems every time I get to the background check they seem to find someone more qualified etc..
Most larger companies hire an outside company to pull the check. Do they pull an entire history and its then up to the hiring company to follow the 7 year

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Attorney answers 3

Best Answer
Posted

I respectfully disagree with Mr. Pedersen's response.

If the companies that you are applying to use outside companies to do these background checks, they are more than likely subject to California's Investigative Consumer Reporting Agencies Act ("CICRA"), found at Ca. Civ. Code §1786 et seq. The CICRA limits what an investigative consumer reporting agency can include on a background investigation. In particular, it limits convictions to those that are 7 years old or younger. See Ca. Civ. Code §1786.18(a)(7).

There are some exceptions. If you were placed on parole, and the parole extended into the 7 year period, it can still be reported. I litigated a case in which a person who was placed on probation (not parole) within the 7 year period had that matter reported.

If the company does the background check itself, it can probably use any information no matter how old, and it is likely in the clear. If, however, it uses an outside company, it is probably subject to the statute I've discussed above.

I hope this information is helpful to you, and I wish you the best.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Additionally, if you are subject to an adverse employment action (such as not being hired) as a consequence of a background check subject to the CICRA, they are required to release to you the name and contact information of the company doing the check, as well as a report of the adverse information. If they used a ICRA, and they haven't strictly complied with the CICRA, they may be in violation. If you are applying to large companies, they are likely familiar with the CICRA, and it is less likely that there was a real violation here.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

You should realize that the CICRA has many technical requirements, and even the most detail-oriented companies sometimes miss them. If you received a disclosure from any of the companies to which you applied after the background check, it's worth following up with the checking company to find out what's going on.

Asker

Posted

Thanks for your time. I thought I had read that somewhere online about the limitations of an outside source and 7 years. Only thing is one will never be able to prove that he was not hired due to the background check alone. I have had job placement agencies tell me they wouldnt be able to place me even if I had a misdemeanor and have run into several applications asking that very question along side the felony question.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Even if you weren't able to prove that the employer didn't hire you solely because of the background, that's not the end of the story. The CICRA provides for the greater of a statutory penalty of $10,000 or actual damages. So if you can show that the conviction was illegally reported, you may be entitled to that statutory penalty regardless from the reporting company.

Christine C McCall

Christine C McCall

Posted

It is not uncommon for the applicant to believe that the background check was the disqualifying factor when the employer contends that the issue was a factual misstatement about the applicant's past criminal history. Employers have substantial latitude to disqualify applicants for untruthful statements, sometimes even when the employer could not have relied on the underlying info as a disqualifying condition. This is one of the reasons why some California statutes re post-conviction remedies specifically allow the affected person to state that no conviction occurred. But where this allowance is not expressly authorized by statute, employees should be careful not to make explicit misrepresentations about the criminal history.

Craig Trent Byrnes

Craig Trent Byrnes

Posted

I agree with Ms. McCall's statement, although there's nothing in the asker's question that states that he was untruthful about his criminal history.

Christine C McCall

Christine C McCall

Posted

You are right, Mr. Byrnes, and I did not intend any such assertion in this specific instance. But the distinction between matter which the employer may not consider and matter that the applicant may deny is so commonly misunderstood, by employers as well as by applicants, that it always seems important to me to take any opportunity to attempt some meaningful identification of the issue.

Posted

There is no law about background checks going back only 7 years. You might be thinking about the 7 year limit on credit reporting. Employers can look back as far as they want to look, and often do. There is no question that a felony from 11 years ago will come up in any basic background check if they do a nationwide search on you. Do not assume they will not find it. Therefore, if asked, answer either "yes, with explanation" or "Will discuss." If the felony is not an automatic disqualifier, then you will get a chance to explain that was in another, different part of your life.

Good luck to you.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

Posted

As with most legal questions, it depends. Under the federal Fair Credit Reporting Act (FCRA), the national standard provides that employers requesting a “consumer report” cannot report bankruptcies after 10 years. There are several areas that are limited to seven years, including but not limited to civil suits, civil judgments, records of arrest, paid tax liens, accounts in collections, and generally any other negative information (except for criminal convictions, that can be reported indefinitely unless expunged). However, these restrictions do not apply when applying for a job with an annual salary of more than $75,000.
Some states have stronger restrictions. For example, California restricts reporting criminal convictions older than seven years.

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