Background checks are a common part of applying to work, volunteer, or live in certain places; obtaining certain professional licenses; petitioning to adopt a child; or going through the immigration and naturalization process. Whether you want to check your own criminal record for accuracy or run a background check on someone else, it’s important to know the contents of these reports, how they’re obtained, and the laws surrounding them.
Background Checks and the Fair Credit Reporting Act
Background check reports can contain a wealth of information, with most of it composed of public records created by government agencies. Other information, such as social media use, is publicly available on the internet. If social media is what you seek, you can get an absolutely free background check online. Still more information is normally private and must be specifically released.
The Fair Credit Reporting Act (FCRA) governs many aspects of background checks. Despite its name, the FCRA is not limited to credit reporting, but it also limits the reporting of criminal and civil records, civil lawsuits, reference checks and other information. Individual states also dictate how long certain records can be reported in a background check.
Read More: How Far Back Do Background Checks Go?
What’s Included in a Background Check?
A typical background check might contain:
- Arrest, criminal, court, incarceration and probation records.
- Driving records and vehicle registration.
- Credit records and bankruptcy filings.
- Sex offender lists.
- Education and past employer records.
- Military records.
- Medical and drug test records.
- Property ownership.
- State licensing records.
- Workers’ compensation records.
Some background checks may also reveal a Social Security number or contain character references and personal references.
FCRA Restrictions on Background Checks
The FCRA limits the kind of information that can be included in background check reports used for employment screenings. However, this law applies only to checks performed by an outside agency. It does not apply to background checks conducted “in-house” by the employer. The FCRA also does not apply to jobs with an annual salary over $75,000.
Before obtaining a report, an employer must provide a disclosure and obtain pre-authorization. The disclosure must be a stand-alone “clear and conspicuous” written disclosure, so it can’t include anything extraneous such as liability waivers. The employer must also obtain the subject’s written authorization.
Unreportable Items on Background Checks
According to the FCRA, the following cannot be reported after seven years:
- Civil suits, civil judgments and arrest records.
- Paid tax liens.
- Accounts placed in collections.
- Any other negative information, except criminal convictions.
In addition, bankruptcies cannot be reported after 10 years.
Absolutely Free Criminal Records
Criminal convictions can stay on your record indefinitely, unless your state has a law stating otherwise. State laws also can affect other parts of a background checks. For example, while arrest records are public information, some states bar employers from seeking this information. In some instances, you may be able to request these records for free from local law enforcement agencies, but if they do not apply to you, this is less likely.
Some states also don’t consider criminal histories compiled by law enforcement agencies as public records. There are also complicated laws governing the type of information surrounding workers’ compensation cases that can be revealed and used. Finally, while bankruptcies are always public record, employers cannot discriminate against applicants based on a bankruptcy filing.
In addition, an employer is required to get the subject’s specific permission before obtaining education, military service or medical records. According to the FTC, your record should also not contain any information that has been expunged. Each state has its own definition of and rules around expungement.
Free Criminal Background Reports
Can you obtain a criminal background check for free? The short answer is yes, you can. The longer answer is that it’s a bit complicated, and it requires some work.
Criminal convictions in the United States are a matter of public record, and such records are maintained by the clerk’s offices of the county in which the conviction occurred. If your subject has lived in the same county their whole life, then a simple trip to the clerk’s office or a visit to the online portal should get you what you need. However, these days, Americans move every five years, on average, so your subject’s records could be spread over many counties or states.
Free FBI and State Criminal Records
The FBI and state criminal records offices keep more comprehensive databases, but access to these is restricted to government personnel and certain employers. Until recently, you would have to go to the clerk’s offices of every county in your area to search for your subject’s history in each location.
Now, many firms offer criminal background searching online – and many clerk’s offices do, too. Today, 75 percent of civil and criminal courts offer an online catalog of past dockets. Almost 80 percent of courts provide an on-location general public access terminal.
What sort of information can you access this way? Criminal records – often referred to as “rap sheets” – typically consist of arrest records, conviction records, criminal court judgments, inmate records and probation records. Criminal background checks also typically include sex offender registries, which are publicly accessible.
Arrest Records and Criminal History
An arrest record, or arrest report, is one section of a criminal record. However, an arrest record alone can’t be used to show that someone has a criminal history, as getting arrested does not necessarily lead to being found guilty of the alleged crime. Someone can even get arrested and imprisoned, generating both an arrest record and an inmate record, while still eventually being found not guilty.
Following the adoption of Megan’s Law at the federal level in 1996, all sex offenders in the United States are required to notify their local law enforcement agencies of their presence in a community. Sex offender registries can be accessed on a national, state, county, city and municipal level, with county registers typically the most frequently updated ones. The U.S. Department of Justice maintains a National Sex Offender public website on which anyone can search for sex offenders in any area within the United States. All of this is public information, and in many cases, it’s available for free online if you’re willing to do some legwork.
In addition to searching county clerk offices, you can often search the local sheriff’s office and the state correctional department. Double-check that these are the actual state, county or municipality websites – many imitators are online. Some sites also offer to aggregate this public data for you – check the sources they use and make sure they don’t have hidden fees. Most jurisdictions do not charge for this information, and it’s therefore possible to do a criminal background check for free.
Getting Your Own Background Check
Of course, if the person you want to look up is yourself, you don’t have to guess at this kind of information. But even if you think you know what to expect from a criminal background check on yourself, see what pops up. It’s not at all uncommon for errors to be present in your record, which might happen when your name is mixed up with someone of the same name, listing a single charge multiple times, or supposedly expunged information showing up. It’s important to find and correct these errors.
While all these tips apply to checking your own record, the most reliable and comprehensive way to check your own criminal record is to request an Identity History Summary from the FBI, or request proof that one does not exist (meaning you have no criminal history). These are available only to the person whose record it is, which means that only you can request your Identity History Summary. To obtain it, you must submit your fingerprints and a fee of $18 to the FBI.
Today, you can make such requests directly to the FBI online and submit your fingerprints electronically at certain U.S. Post Office locations. Otherwise, submit a request directly to the FBI by mail or through an FBI-approved channeler (a private business that has contracted with the FBI to submit such requests on your behalf). Finally, you are also entitled to one free credit report from each of the three major national credit unions per year. To obtain this information, go to www.annualcreditreport.com; this is the only source authorized by federal law.
- Expunged or sealed crimes will not be displayed in public access.
Danielle Smyth is a writer and content marketer from upstate New York. She holds a Master of Science in Publishing from Pace University. Her experience includes years of work in the insurance, workers compensation, disability, and background investigation fields. She has written on legal topics for a number of other clients. She owns her own content marketing agency, Wordsmyth Creative Content Marketing, and enjoys writing legal articles and blogs for clients in related industries.