Criminal Records Reporting Laws Are On The Cutting Edge

Employers have a reasonable right and responsibility to assure the person they are hiring is not a threat to themselves, their employees, property, and business. In order to gain this assurance, they do criminal background checks. Most businesses use a third party to do this, rather than do it themselves. Federal and state laws have been issued requiring that these agencies and the reporting process is accurate and fair. The U.S. federal laws that govern credit and criminal history reporting are the Fair Credit Reporting Act (FCRA) of 1972 and its amendment, the Fair and Accurate Credit Transactions Act (FACT) of 2003. In addition to federal laws, many states have laws regarding criminal reporting by agencies, such as California, Colorado, Kansas, New Mexico, and Washington. Here we’ll look at FCRA and FACT criminal background reporting requirements and the California criminal records reporting requirements and how one limits the other.

Arrests and convictions may be recorded at the local (city, town), county or parish, state, or federal levels. Most states have a central depository to which all counties report convictions and arrests, and the federal government also has its own. States and the federal government allows anyone to access and copy these records, most of which are recorded in electronic databases. Most states also allow private criminal records reporting agencies to tap into their databases. These agencies collect criminal records into their databases and sell reports to the public. In California, criminal records are not centralized. California criminal records are maintained at the county level. Out of 58 counties in California, 53 do not allow private organizations network access to criminal records, while 5 do. This means that agencies must send investigators to each of the 53 county criminal records hall to collect criminal records. This also means that a database of California criminal records can be out of sync. Unless a reporting agency has someone collecting records around the clock, a report may not include new criminal records or reversals. For instance, if a report is requested on a given day, that report will only contain criminal records as of the last collection day. On the day of the request new records may have been created, but, because there is no immediate access to new updates, those new records may not appear on the report. It is entirely possible to be hiring someone who was convicted of a crime the day before the hiring and yet the report on the day of the hiring does not show the conviction. It is also possible that the records reported may have been expunged a day before, but the records still show up on the report. This flaw in California criminal records reporting may cause someone to lose an employment opportunity or cause an employer to hire someone who should not be hired.

The federal FCRA and FACT laws cover procedures for initiating a criminal background check and concluding one, but does not require a system configuration to prevent the deficiency just mentioned. FACT amended FCRA by allowing employers to do a criminal background check without the employee’s permission, but continued the requirement that employers investigating prospective employees must obtain the candidates permission to investigate and to tell a candidate who is rejected because of the report the name, address, and phone number of the reporting agency. The California criminal records reporting law that further governs this process, that is, the California Investigative Consumer Reporting Agencies Act (ICRAA), requires employers to provide this information and a copy of the report within 7 days of the rejection.

California criminal records reporting is further limited by ICRAA in what can be reported. Sealed, purged, or expunged felony convictions over 7 years old cannot be reported. Misdemeanors in which probation was satisfied cannot be reported, as well as dismissed drug convictions that required satisfactory drug rehabilitation or diversion program completion. Until 1998, FCRA also prohibited reporting convictions older than 7 years that have been sealed, purged, or expunged, but now it allows reporting convictions without regard to the age or disposition of the conviction.

Although California criminal records reporting requirements place additional processing and reporting burdens on reporting agencies, it does represent the will of the people of California. That will appears to involve business in the prevention of recidivism and the ex-offender in the grace of hope and redemption. We can only hope that business and ex-offenders respect the aspirations of each other to the end goal of a prosperous, safe, and humane California.

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