In the background check industry, we’re used to getting a lot of questions from recruiters and candidates. That’s why we’ve put together this quick guide to criminal record checks. You’ll find the top six questions we hear on a daily basis, along with the answers to all these pressing queries.
1. Are criminal records public information?
This is an easy one. Yes. Tied to this fact is why we cannot perform a criminal record search solely by the social security number. Criminal searches are conducted by name and date of birth, with the SSN as an additional identifier. The SSN is often excluded from criminal records because they are a matter of public record.
2. Applicants: What information do employers receive when they conduct a criminal records check?
This is probably the most common question we receive from job seekers, likely because more employers are running background checks to comply with regulations and mitigate risks. A pre-employment criminal records check is going to reveal your criminal record if you have one. Criminal records checks generally return felony, misdemeanor and certain traffic offenses and infractions that occurred within the reporting window allowed under state and federal law.
3. Applicants: If I don’t have a criminal record, I have nothing to worry about, right?
This question is challenging. Most applicants assume that if they don’t have a record, they’re in the clear. But that’s not always the case. While Info Cubic takes every precaution to ensure that the information reported is accurate and belongs to the subject in question, there is still the possibility that errors can occur due to the manual nature of filing and retrieving court records. It’s possible that someone who has a record has the same name, date of birth, or other identifiers as someone completely unconnected to them which may result in a false hit. Additionally, identity theft can result in surprise criminal charges on your record. If errors are found in the employer’s background check, or on one ordered by the applicant themselves, they should be sure to call the relevant parties to fix those issues as soon as possible. All candidates are guaranteed the right to disputing the results of a background check under the Fair Credit Reporting Act.
4. Applicants: What types of records are there, and will they appear on my criminal records report?Scenario #1: Non-convictions under seven years; examples include:
Dismissed
Nolle Prossed
Acquitted
Not Guilty
Dripped/Abandoned
Etc.
While some background screening firms may report non-convictions, Info Cubic does not report these “arrest only” situations where charges were dropped or the defendant was otherwise found not guilty. According to the Fair Credit Reporting Act (FCRA), a non-conviction criminal record can be reported on the background check report for a period of seven years from the date of disposition (when the verdict is rendered), however many states have their own legislation that prohibits the reporting of non-convictions.
Scenario #2: Non-convictions more than seven years old
According to the FCRA, a non-conviction that is over seven years from the charge or file date cannot be included on the background report.
Scenario #3: Non-convictions with stipulations under seven years; examples include:
Deferred adjudication
Pre-trial diversion
These will be considered convictions until the defendant completes certain stipulations, after which it will be dismissed and is no longer something we would report. Info Cubic will report these cases as long as they are still active (not yet dismissed), the stipulations have not yet been completed or were violated, the case is within 7 years, and the state allows reporting of pending cases.
Scenario #4: Convictions
When an individual has a conviction, the record can be reported subject to state and federal reporting guidelines. Though employers may see these records, it may not influence their hiring decision if the record is old or will not affect performance in the position. Some employers may also ask their background screening company to exclude convictions from over a certain number of years ago (ex: 7 or 10 years depending on the severity of the crime).
Scenario #5: Expunged or seal records
When an applicant has a record that has been sealed or expunged, this record would not appear on a background report if it was sealed or expunged at the time the search was conducted through the court.
Scenario #6: Juvenile Records
If a defendant is convicted of a crime as a minor in Juvenile court, they would have what is considered a Juvenile records. These types of records are not reportable, and should not be included on the final report. However, just because a defendant is a minor at the time of conviction does not mean the case is necessarily a Juvenile case. Many states’ age of majority can be below the age of 18, so minors who have committed more serious crimes may be charged as an adult. Crimes where the minor is charged as an adult may be reported.
5. Recruiters: What type of criminal record checks and information is available from a background check company?
Most background check companies collect criminal record information from a variety of Federal, State and County sources, including district courts, offender registries, Interpol public records, department of corrections, state police departments, state courts,county and state criminal record repositories, prison parole and release files, municipal jurisdictions, traffic courts, and probation records. Police arrest records are typically not included. Here’s an outline of the different types of records that may be included:
Infractions: Infractions are governed primarily by state laws, which vary by state, but they are usually not considered crimes. Rather than being subject to a jail term upon conviction, guilty violators typically receive fines. Usually, an infraction is neither a crime nor an offense as defined in the penal code. Infractions typically include littering, disorderly conduct, and public nuisance offenses.
Traffic Offenses: While these include any traffic-related offenses from speeding to driving under the influence, these types of charges are generally only reported if they are more serious in nature (Reckless Driving, Driving Under Suspension, Driving Under the Influence), or if there is jail time involved.
Misdemeanors: These are typically considered a less serious or minor offense, but they are still crimes that may be punishable by incarceration, usually in a local confinement facility. The maximum incarceration period is typically one year or less, though a few states classify a misdemeanor as an offense with a sentence of two or even five years.
Felonies: Felony offenses are considered more serious and carry a penalty of incarceration from one year to life in a state prison, all the way to the death penalty (depending on state).
6. Recruiters & Applicants: When Can Job Applications Ask About Criminal Records?
Job seekers with criminal histories often ask if they have to disclose their prior convictions. On some applications, there is an option to check a box relevant to criminal history. If an applicant checks yes, he or she is asked to explain the circumstances; however, if that box is checked, your application may never even be read. Because of potential discrimination issues, there is “Ban the Box” legislation in some states that limits what can be asked on a job application. This does not mean that employers can’t check an applicant’s criminal history, however it does limit if, when or how that information can be requested during the pre-hire process. Across the U.S., over 150 cities, counties, and states have adopted such legislation with a goal of giving those with criminal history a better chance of finding employment to end the cycle of recidivism.
It’s important to note that while an employer can choose not to hire someone based on his/her record, an applicant can also be disqualified for not disclosing a record or misleading the employer during the application process. It’s best for the information submitted on applications to be truthful.
For more information about criminal records checks, contact Info Cubic today.
