What a Criminal Background Check for Employees Actually Covers
A criminal background check for employees is a structured search of criminal records, at the county, state, and federal court levels, conducted on a job candidate with their written consent. The search surfaces felony and misdemeanor convictions, pending charges in some jurisdictions, sex offender registry entries, and in some configurations, domestic and international criminal databases. What it does not surface: arrests without convictions (legally restricted in many states), records that have been expunged, juvenile records, and convictions that are older than the lookback period permitted by the jurisdiction or by ban-the-box laws in the candidate’s location.
For a small business, criminal background checks serve two purposes: they reduce negligent hiring risk for roles involving financial responsibility, vulnerable populations, or unsupervised access to client property, and they create a documented, consistent screening process that applies the same criteria to every candidate in a role: which is both a fairness requirement under EEOC guidance and a legal protection if a hire causes harm that the employer should have anticipated.
Criminal Background Check Types: What Each Covers and When to Use It
\n\n| Check type | What it searches | Cost range | Turnaround | When to use it |
|---|---|---|---|---|
| County criminal search | Criminal court records in a specific county: the most accurate and complete source for convictions in that jurisdiction | $15–$30/county | 1–5 days | Every hire: search counties of residence for the past 7 years |
| Statewide criminal search | State-level repository search: completeness varies widely by state (some states have complete records. Others have significant gaps) | $10–$30/state | 1–3 days | Supplement county searches. Required for roles with statewide responsibility |
| Federal criminal search | U.S. District Court records: covers federal crimes (fraud, tax evasion, drug trafficking, interstate crimes) | $15–$25 | 1–3 days | Financial roles, government contracting, senior positions |
| National criminal database search | Aggregated multi-state database: broad but incomplete. Many county-level records are not in national databases | $10–$20 | Instant–1 day | Supplemental only: always pair with county search. Not a standalone |
| Sex offender registry search | National and state sex offender registries | $5–$10 | Instant | Roles involving minors, vulnerable adults, or home access (caregiving, in-home services) |
| Global / international search | Criminal records in countries where the candidate has lived or worked | $50–$200+/country | 1–4 weeks | Senior hires who have lived abroad. Roles with international exposure |
State-Level Restrictions That Affect Background Check Use
Beyond the federal FCRA requirements, most states and many cities have enacted additional restrictions on how criminal background check results can be used in employment decisions. The most significant categories are ban-the-box laws, lookback period limits, and individualized assessment requirements.
Ban-the-box laws prohibit asking about criminal history on a job application and in some jurisdictions prohibit conducting a background check until after a conditional offer of employment has been made. As of 2025, ban-the-box laws apply in more than 35 states and over 150 cities and counties, including California, New York, Illinois, Massachusetts, and Washington. Violating the timing requirement, running a check before the conditional offer stage, is a violation regardless of what the check reveals.
Lookback periods limit how far back a background check can consider criminal history. California limits most reporting to 7 years. New York has specific rules by crime type. The FCRA itself limits reporting of non-conviction information to 7 years but imposes no limit on convictions. State law typically controls when it is more restrictive than federal law. Confirm the lookback rules for every state where you have employees before setting your screening criteria.
Running Compliant Employee Background Checks: 5 Steps
- Define your screening criteria by role before ordering any checks. And apply them consistently. Background check policy must specify, in writing, what criminal history is disqualifying for each role type and why it is relevant to that role. A felony financial fraud conviction is directly relevant to a bookkeeper role. The same conviction may not be relevant to a warehouse associate role. EEOC guidance requires employers to conduct an individualized assessment for any candidate with a criminal record rather than applying blanket disqualification policies. And that assessment must consider the nature of the crime, how much time has passed, and whether the crime is directly relevant to the job. Document your criteria per role type before the first check runs.
- Select a background check vendor that provides FCRA-compliant forms and adverse action tools. Commercial background check vendors vary significantly in FCRA compliance support. The right vendor provides: a candidate-facing disclosure and authorization form that meets FCRA requirements, a pre-adverse action notice template with the required candidate rights summary, an adverse action notice template, and either a compliance team or legal resources for state-specific requirements. Vendors that process checks through a simple API without compliance support create a situation where the employer bears all the FCRA compliance burden. Use vendors like Checkr, Sterling, First Advantage, or HireRight: all of which provide compliant workflow tools alongside the check results.
- Obtain written consent before ordering the check. And confirm ban-the-box timing for the candidate’s state. Written consent is mandatory under the FCRA. In ban-the-box jurisdictions, that consent can only be collected after a conditional offer of employment has been extended. The practical workflow: extend the conditional offer in writing, then send the background check consent form as a step in the offer acceptance process. Do not send a background check consent form during the application stage or prior to any offer in any state with ban-the-box timing requirements. Your background check vendor should flag the applicable restrictions based on the candidate’s state.
- Follow the pre-adverse action process before withdrawing an offer based on check results. If background check results will be used to withdraw a conditional offer or to take adverse employment action, the FCRA requires a specific two-step process. First, send the candidate: a copy of the background check report, a copy of their FCRA rights summary (“A Summary of Your Rights Under the Fair Credit Reporting Act”), and your intent to take adverse action. Wait a reasonable period, typically 5 business days, before the final adverse action. This waiting period gives the candidate an opportunity to dispute inaccurate results (a meaningful right, since background check database errors are not rare). Only then send the final adverse action notice. Skipping the pre-adverse action step is the most common FCRA violation in small business hiring.
- Keep background check records separately from the personnel file. And set a retention schedule. Background check results and consent forms should not be stored in the employee’s regular personnel file. They belong in a separate, access-controlled file maintained only as long as legally required (FCRA requires retention of the consumer report for 5 years from the date of action. EEOC recommends 1 year for records related to hiring decisions). Keeping sensitive background check data in the general personnel file increases exposure if the file is accessed by someone without a need to know and complicates compliance with candidate requests for their file under state privacy laws. Set a document retention schedule and follow it.
Building the complete hiring and HR system for your small business team?
