Know your rights, responsibilities when conducting criminal background checks

Q         How far back are we allowed to verify information (both criminal and previous employer references) when conducting a background check?

A   Idaho and federal law permit you to obtain, with a signed release, a criminal background check for verification purposes. In Idaho, arrests cannot be included in a background check after seven years, but records of convictions may be reported indefinitely. There’s no legal limit on how far back employer references may be checked.

Discriminatory use of criminal history may violate Title VII of the Civil Rights Act of 1964. Prohibited uses include all actions by employers treating the criminal history differently for different applicants or employees. An applicant cannot be denied employment based on a criminal record alone. The decision must be based on a business necessity. This requires you to consider the nature of the crime, the time that has passed since the conviction or completion of the sentence, and the nature of the job.

Generally, you must obtain written permission for all additional background checks seeking information beyond what is required in the application or resume. Further, when a background check is prepared by any outside entity, you must comply with the Fair Credit Reporting Act (FCRA), which includes certain notice provisions.

Jason R. Mau is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or jmau@parsonsbehle.com.