Several years ago a client of mine applied for a package handler position with Federal Express. Having last been convicted of a crime in 1991, my client answered “no” to whether he’d ever been convicted of a crime on the employment application form.

My client assumed that the background check would not go back more than ten years. That assumption proved to be a grave miscalculation. My client didn’t get hired.

While some employers will hire someone with a criminal background, I can’t think of any employer (given today’s prevalence of performing pre-hire criminal background checks) willing to hire someone after learning that s/he lied about their criminal background.

Employment Criminal Background Checks: No One Size Fits All

My client is not the first person I’ve encountered who’s assumed employers never look back more than seven or ten years when conducting a criminal background check. There are several reasons for this common misconception which I won’t discuss here. Suffice to say, how far back an employer will run a background check will depend on several factors: 1) where the employer is located; 2) type of job; and 3) employer’s attitude towards people who have a criminal background.

Federal and State Law Restrictions to Look-Back Period

Federal Law

With few exceptions employer criminal background checks are regulated by the Federal Fair Credit Reporting Act (FRCA). Under the FRCA, there are no restrictions as to how far back someone’s criminal conviction history can be searched. The FRCA limits arrest record searches to the last seven years, provided that the job in question pays less than $75,000 a year.

State Laws

Currently, ten states impose time limits on how far back a criminal background check can go. Four of these states restrict the look-back period to seven years for any conviction (felony or misdemeanor): California, Massachusetts, Montana, and New Mexico.

One state, Hawaii, applies different look-back limits depending on the offense: felony (seven years), misdemeanor (five years). Until the current provisions went into effect earlier this month, Hawaii had imposed a blanket ten-year look-back rule.

In the preamble to Senate Bill 2193, the Hawaii legislature explained why it chose to amend the state’s existing guidelines:

Unfortunately, a job applicant’s criminal record, including their conviction history, can [be] … a barrier to employment opportunities [due to] … express or unconscious biases against hiring or retaining individuals with a record, even if those records are extremely old, for relatively minor crimes, or unrelated to specific employment opportunities.

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The legislature finds that the ten-year “lookback” period … should be shortened to reduce unnecessary employment discrimination … [further] economic self-sufficiency, and to reduce crime and recidivism rates. 


The remaining five states restrict background checks to seven years but only if the job pays less than $25,000 or $20,000 a year: Kansas ($20,000), Maryland ($20,000), New Hampshire ($20,000), New York ($25,000), and Washington ($20,000).

A Call for Legislative Action in Illinois

Illinois has yet to impose any look-back restrictions. Currently, Illinois merely restricts employers from considering arrest records when making employment decisions. Sadly, even this restriction is frequently ignored by employers due to the FCRA’s conflicting provisions regarding the collection of arrest record information.

Illinois should take a cue from the Hawaii legislative and enact similar background check restrictions. The difficulties experienced by those who have a criminal background -- succinctly summarized by the Hawaii legislature – have no geographic boundaries.

Conclusion

Unless you live in a state that has enacted statutory limits on criminal background checks, never assume a background check will only go back seven or ten years. You will do so at your own risk.