How a Criminal Background Check is Performed

Generally speaking, there are two ways to conduct a criminal background check:

  • Public records search
  • Fingerprint/ live-scan (electronic) search

Public Records Search public records search is usually performed at the request of a private-sector employer or other private entity (e.g., rental-property managers, colleges). The vast majority of these searches are done by consumer reporting agencies (CRAs), which rely on information found in court records and criminal databases that are sold by the state agencies responsible for collecting and storing this information. Most employers conduct a background check after making a job offer that is conditioned on the candidate “passing” the check.

CRAs are regulated by the federal Fair Credit Reporting Act (FCRA).  According to the FCRA, if a CRA is hired to perform a background check, the employer must obtain written permission from the applicant before conducting the background check. The FCRA imposes no restrictions on reporting criminal convictions.  As long as the conviction has not been sealed (access withheld from the public), a CRA is free to report it.

The FCRA does impose limitations on a CRA’s ability to report arrest records.  As a general rule, a CRA cannot report arrests that are more than seven years old. This restriction does not apply if the job in question pays a salary of $75,000 or more.

Although Illinois law prohibits employers from taking someone’s arrest history into account when making a hiring decision (provided that the arrest did not result in a conviction), CRAs are not required to withhold this information from Illinois employers. Thus, if you have an arrest history, you should assume that a private employer will see this information if a CRA performs a public records background check on you.

If an employer decides to withdraw a job offer due to information it receives in a CRA background-check report, the employer must notify the job applicant as to why it is withdrawing the offer and provide the applicant with a copy of the report so the applicant can verify the accuracy of the information it contains. However, employers often ignore this requirement.

Because searches are done using your name and possibly a birth date, if you have a common name there is a risk that information attributed to you belongs to someone else who has the same name.

If you know your report will include criminal-history information (arrests or convictions), and the employer withdraws the job offer, then make sure to obtain a copy of the report. You should do this even if the employer gives you a “neutral” reason for the withdrawal (e.g., “We decided to go in a different direction” or “We no longer have a job opening”).

When the employer’s own staff conducts the background check, FCRA requirements do not apply.

Fingerprint/Live-Scan Search

In Illinois, fingerprint/live-scan searches are conducted by the Illinois State Police (ISP), which collects and maintains arrest and conviction records.

Additionally, the FBI conducts fingerprint/live-scan background checks. In most cases, if you are required by law to undergo a fingerprint/live-scan background check, your prints will be submitted to both the ISP and FBI criminal databases.  Unlike the ISP database, the FBI database includes information from all U.S. states.

Individuals seeking employment in law enforcement or a license and/or employment in fields including education, nursing and caring for the elderly or disabled, are required to undergo a fingerprint/live-scan criminal background check.  Applicants for jobs that require employees to carry firearms (e.g., security guard, private investigator) also are subjected to a fingerprint /live-scan check.

There is one critical difference between the information that the ISP has access to versus what information is in the public record.  If someone has sealed an arrest or a conviction, this information remains in the ISP database but can be released only under strict statutory guidelines