Our background check company’s report included a very old felony conviction; can I consider this conviction in making my hiring decision?

The federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) both restrict what background check companies (referred to in the statutes as “investigative consumer reporting agencies”) and prospective employers can and must do with regards to information on individuals who are applying for jobs.

The ICRAA imposes numerous disclosure and procedural requirements on both employers and investigative consumer reporting agencies, and it limits the type of information the investigative consumer reporting agency can provide to the prospective employer.

With regards to records of arrest, indictment or conviction of a crime, the investigative consumer reporting agency may provide information that is no more than seven years from the date of “disposition, release, or parole” (California Civil Code Section 1786.18(a)(7)).

For example, although a conviction may be from 1995, the investigative consumer reporting agency may be legally entitled to provide you the information if the applicant was released from prison within the last seven years.

You will need some additional information from the background check company to be certain that it was legally authorized to provide you with that information.

The statutes don’t specifically prohibit an employer from considering information that is beyond the limits of what an investigative consumer reporting agency is allowed to provide; however, before considering such information in making your hiring decision, we would suggest consulting your own legal counsel to ensure you’re in compliance with the FCRA, ICRAA, and California’s additional restrictions and requirements regarding consideration of criminal history in employment decisions found in the Labor Code and the Fair Employment and Housing Act.

Read more about Restrictions on Obtaining Criminal History in the HR Library.