Counting to Seven: The 7 Year Rule for Reporting Adverse Information on a Background Check

Angela Preston

Adverse Action Background Checks

If you read the Fair Credit Reporting Act (FCRA) as much as I do (insert nerd joke here), you might know that it allows non-conviction criminal information to be reported for up to seven years. One question that occasionally comes up is, when does the clock start on the seven year count? According to a recent brief filed jointly by the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC), your count may be wrong.

The Issue

At the heart of the issue is the FCRA provision dealing with obsolete information that limits how far back a consumer reporting agency (CRA) can report adverse information in a background check. In a recent amicus brief filed in the U.S. Court of Appeals for the Ninth Circuit on October 4, 2013, Moran v. The Screening Pros LLC (Case No. 12-57246), the FTC and the CFPB tag team on the issue, saying that the clock starts when the adverse information is first filed or entered into the record.

In general, an adverse item of information is reportable only if it antedates the report by seven years or fewer. 15 U.S.C. § 1681c(a)(5).  The report in this case, made in 2010, listed (among other items) a misdemeanor drug charge from 2000 that was dismissed in 2004. The lower court concluded that the drug charge could be reported for seven years from the date the charge wasdismissed. The FTC and CFPB are saying that the trial court decision was wrong—rather, as a result of a 1998 amendment to the FCRA, the seven year reporting period for the dismissed drug charge should have started on the date of the charge and therefore ended in 2007.

Original FCRA Language

In the original FCRA, “[r]ecords of arrest, indictment, or conviction of crime” were reportable for seven years, starting at the “date of disposition, release, or parole.”  The amendments to the FCRA in 1998 deleted this paragraph. The amendment moved “records of arrest” to paragraph (a)(2), which now limits the reporting of “[c]ivil suits, civil judgment, and records of arrest” to seven years “from date of entry,” 15 U.S.C.§ 1681c(a)(2).  The agencies argue that the adverse event in this case is the charge—not the subsequent dismissal of the charge:

the dismissal is not an adverse item that starts its own seven-year reporting period. It is simply the disposition of a truly adverse item, the underlying criminal charge.”

The old rule from the original FCRA is still being followed by some. Interpretation of the amendments has not been crystal clear, and commentary and interpretations by the FTC over the years have muddied the waters.

Reporting Convictions

While the court has yet to rule in this case, everyone can agree that the 1998 amendment removed criminal convictions altogether from the restriction on reporting obsolete information. So the FCRA has no time limitation on reporting criminal convictions. However, some states have limitations on the length of time records may be reported. In addition, many employers limit the use of older convictions for other, non-FCRA reasons. The use of older convictions may not pass the scrutiny of the Equal Employment Opportunity Commission (EEOC) for being job related and consistent with business necessity.  The EEOC guidelines state that an employer must consider the amount of time that has passed since the offense was committed when deciding whether to use the information in an employment decision.

So what does it all mean? A few quick take-aways:

  • Employers (and landlords) should review your policies on using non-conviction information. If you want to consider records of arrest resulting in dismissals and other non-conviction type records, you should check with your background screening provider to see how the time is being calculated, and take into consideration state law restrictions.
  • Employers should also consider how older records are relevant to specific positions.  The EEOC guidance says that employers must consider the time that has passed since the offense was committed and determine whether the offense is relevant to the job. If older offenses are important to you, document the resons why in the job description and policy.
  • CRAs should review their practices on the reporting of dismissals pursuant to section 605(a).

This brief certainly shows which way the wind is blowing with the CFPB and the FTC, and may lead to future rule-making on this subject. If you would like a copy of the brief, please send a request to, and as always, I am interested to know what you think of the FTC/CFPB position.

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Angela Preston
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Angela Preston

Vice President of Compliance & General Counsel at EmployeeScreenIQ
Angela Preston has more than 20 years as a licensed attorney and over 10 years in the background screening area. She serves on the Board of Directors of the National Association of Professional Background Screeners (NAPBS), is a member of the NAPBS Background Screening Credentialing Council (BSCC), and is actively involved in the Society for Human Resource Management (SHRM) and ASIS International. Angela is also a member of the Ohio State and Columbus Bar Associations. Angela has direct oversight and management of compliance programs, and will provide guidance in complex legal matters including state and federal legislation, EEO law, client education, adjudication, pre/adverse action process, NAPBS Accreditation and client and vendor contract management.
Angela Preston
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  • Shawn Ekblad

    I wonder if there has been consideration given in regards to the states that do limit convicitions to 7 years. If the suggested commentary to begin the 7 year count upon the date of the charge is applied there may be instances where the conviction may be removed from the report at the same time or even before the individual has completed serving the sentence/parole for the conviction.

  • This was very informative and relevant information.

  • Pingback: October BTW: Who Should Have Access to a Background Check? | EmployeeScreenIQ Blog()

  • Michael Saltz

    Shawn, the answer to your question is that the 7-year rule does not apply to convictions under the FCRA. One would only be serving a sentence or be placed on parole if they were convicted of a crime. There currently is no Federal limit in reporting convictions. Thus, depending what state you are in, the conviction information will normally be reportable 7 years from disposition, release or parole (whichever is later).

    The issue here is: How are dismissals handled? The FTC and CFPB have now, for the first time, taken the position that the FCRA has made a wholesale change to the counting of dismissals that departs from the original theory of counting from the date of the dismissal to the counting of the date of the charge.

    The problem with the CFPB’s and FTC’s position is that it is pure speculation: Congress did not say that such was their intent and they never bothered to tell anyone that they intended to change the counting period for dismissals. They especially did not tell any of the states that the rule had changed because nearly every state that regulates the reporting of criminal records limits the reporting to 7 years from disposition, release or parole. Dismissals are dispositions.

    As such, the CFPB and the FTC are now trying to make up policy by bootstrapping dismissals to the filing date of the criminal charges based on the following logic: They state that the reporting of a dismissal of a criminal charge is not adverse information. But, in reporting the dismissal, you are in essence also reporting the filing date of the criminal charge, which is adverse information. Thus, the CFPB and FTC are taking the position that if you report anything that necessarily exposes the existence of prior adverse information in your effort to achieve maximum possible accuracy, your ability to report such information is controlled by the date triggered by the old adverse information and not the date of the actual event your are trying to report (even if the new event is not adverse to the consumer).

    I hope this clears up the issue for you.

  • shannon

    I live in Washington State, but was convicted In 2003 in AZ. Because my fine was so big, my probation was extended last year. I have never had a problem finding work since the crime was over 10 yrs, but now my crime showed up by ADP saying that since my probation was extended my 7 year started over. So now I’m told that I will always show up in any back ground check for the next 7 years. Is this seriously true?

  • JP

    The FCRA ruling on reporting convictions seems to be very “open to interpretation”. In Texas the 7 year limitation applies but it still leaves it open to the reporting agencies interpretation as to when the 7 year clock should start. Example:1994 robbery conviction. Sentenced to 15 years prison. Served 8 years prison and released from prison in 2002. Was paroled in 2002.

    So according to the guidelines in Texas/FCRA for a reporting agency to be able to report this information on a background report the adverse information needs to be 7 years or younger from the date the report was run. In the above noted case:
    Date of disposition: 1994
    Release from prison: 2002
    Paroled: 2002
    Total completion of sentence: 2009

    I don’t see anywhere in the verbage where the reporting agency can choose to combine 2 of the criteria: 1. release and 2. paroled to come up with the guideline 7 years from “release from parole”.

    How is this fair? What can a person do who has been affected by a reporting agency reporting on a background check a conviction from 1994 that has a disposition date of 1994 but it still being reported on a 7 year background screening in 2013?

  • Name GH

    So if a conviction date (in Texas) is 2004, but they served time and got out of prison in 2011, do I use 2004 and say he is eligible for hire because the 2004 date is longer than 7 years ago, or is he NOT eligible because it should be 7 years AFTER 2011 release date from prison (which would make him eligible in 2018)?

    • Nick Fishman

      Thank you for your message. There is no such exemption for convictions in the state of Texas. This would just apply to non-convictions. Therefore, the conviction can factor into your hiring decision regardless of the age. Just make sure to consider the nature of the crime and how it impacts job responsibilities, the severity, if the person has multiple convictions and any other mitigating circumstances.

  • Kelly

    I am undergoing a background check. I have a misdemeanor DUI in California and the county criminal goes back 7 years for this company doing the background check. Does the county criminal go 7 years from violation date, or 7 years from disposition date? If it is 7 years from the violation or offense date it has been more than 7 years and shouldn’t show up, correct? Thank you.

    • Hi Kelly,
      Thanks for the question. The situation referred to in the article deals with non-convictions and dismissals, but since you are in California, and since this is a conviction, it would be report-able seven years from the disposition of the case.

  • Name

    If an applicant lives in a non 7 year restrictive state do I benefit from the 7 year restriction for a state that does? For example, I live in Texas but have a conviction in CA over 7 years, can this be reported in Texas?

  • john l

    I was just offered a position today and they will obviously be doing a background check. I have a 3rd felony theft from Oct. 2007 that resulted in deferred adjudication. I was released from probation in may 2009 and I’m eligible to get my record sealed this May 2014. Does the 7 years just count years or from the actual date of the arrest. 7 Years from 2007 would put me okay in 2014 if they count years as a whole correct? If they count from the actual date of arrest then my records getting sealed would actually come up before so the 7 year rule was pointless in my particular case.

  • The seven year situation in the article deals with non-convictions. The answer to “name”, above, depends.There is no seven year restriction for employers in Texas. However, it is not likely that the California conviction would be reported beyond the seven years. Much depends upon the employer and the sources they are using, as well as the reporting policy of the background screening company. Best to seek counsel and consult with an attorney for these close calls.

  • Name

    My company recently did a fcra on me I live in texas been with my company 11 yrs and my felony is 23 yrs ago and it still showed up I didn’t lose my job however they told me there is no statue of limitations in texas the seven yr rule is bull crap

  • Sally

    The 7 year rule DOES NOT exist it is a SHAM…
    I went in for a back ground check in January 2014, my 23 year felony showed up & I asked about the 7 year Law Mr. Geib laughed at me. Mr. Geib from Intercept informed me that the employer would receive the information. Well I didn’t get the job to say the least. I live in California so all felons good luck I guess we are suppose to pay the price FOREVER….

  • I live in Utah. I am undergoing a background check for employment that means the world to me. from 2005 to 2008 I was charged with many charges. I did a LONG term treatment (22 months)and diversion program, all of my charges were dismissed in 2011. ADP told me these charges would not show up, they were all dismissed w prejudice. This October will be 6 years clean for me I has worked my butt off to change my life, pay my debt and continue to work hard to give back to my community! Does anyone know if this is true?? Twice ADP has told me they do not report the dismissed charges but they certainly did in 2010…11pages and I was denied emp. They are all drug related, no crimes against people or any violent anything…WORRIED

  • cris beckett

    Hello… I am trying to confirm CRIMINAL BACKGROUND CHECK terms that apply for state licensing to be a insurance broker relating to California… Can someone please help with the following questions…

    How many years will a background check include on the “rap sheet?”

    Per/ state licensing; Is this a criminal back ground compiled from state level or FBI?

    I had a misdemeanor in 2002 that was expunged in 2005. Is it reported in California from date of arrest or expungement?

    Is a DUI conviction an automatic denial for a brokers license in California?

    Thank you & value any advice!

  • Political Prisoner

    In july 2004 I was convicted of a felony related to marijuana sales in california where i live. In 2012 I had applied for a job here in california.

    After multiple interviews for the position, I was notified that i had been hired out of about 15 people who also interviewed for the job, I was VERY happy!!

    But, they first had to do a background check………. and I hoped that my felony would not show up since it had been 7 years since my conviction. Though, i was worried about specific wording that states:

    [r]ecords of arrest, indictment, or conviction of crime” were reportable for seven years, starting at the “date of disposition, release, or parole.”

    Therefore I was not sure when the seven years started.
    Did it start from teh date of my arrest in november of 2003?
    Or did the 7 year rule start from the date of my conviction in july of 2004?
    Or perhaps the 7 year rule started from the date of my release from prison in may of 2005?
    Or maybe the 7 year rule started from when I completed parole in june of 2006??

    Well, after waiting about a month to receive the background check that was done by a third party company (sterling), I was denied the job as my felony showed up.
    Therefore, it is clear to me that the 7 year rule STARTS from the date of ones release from parole/probation. So, i have been unemployed for many years now and I cannot even receive food stamps since I had been convicted of a “drug” crime. It has now been over 7 years since I have been discharged form parole so I am hoping that my felony does not show up again when I start looking for a job again.

  • william

    Consumer reporting agencies may not report outdated negative information. In most cases a consumer reporting agency may not report negative information that is more than 7 years old.But then it says that records of convictions of crimes can be reported regardless of when they occurred. It gives both these statements in the FCRA, So which one is it? This sounds like a contradiction to me!I was convicted of a non violent felony in 1982 and even though I paid my debt to society 32 years ago I am still being punished for it today may 6th 2014,maybe the government would like for us to commit more crimes just to try to stay alive,Man this is one screwed up nation and every day that I live in it the more I despise this country, The government purposely blocks ex convicts from actively seeking employment by allowing companies and corporations to view our personnel information and bar us from earning a living.

  • william

    I could see that it would be fair to report class x felonies such as pedophiles, murderers, rapist but if you are not a violent person and not likely to commit another crime in your lifetime the information in your criminal history should only be available to law enforcement and not the general public but the government allows this to slide because of the bribes er I mean campaign contributions that they receive from the credit reporting industry and at the same time there are no bigger criminal entities than corporations, Read the constitution, For the corporations by the corporations of the corporations, God curses the united states in it’s present form.

  • I was originally quite confused by this rule, but this has cleared things up for me. Thanks for the informative post.

  • mother

    I am a mother of 7 children have been hired by great companies then background check comes back,stuff back from 1993. They deny my employment. I am having the hardest time looking for someone to hire me, I never went to prison have a record from a life of domestic violence,And I am still being punished. I was physically abused by my husband I reached for the phone he pushes me down and calls the cops on me, I was covered in glass shards half naked brused and cut and I went to jail the cops said because he called them first. I was arrested for malicious machieve 2 nd degree was in jail 48 days before I went to court they told me if I take it to jury trial, like I wanted to I would have to be in jail for four more months, I missed my kids and had a 3 month baby so I plead guilty just so I can be with my children because They needed me and I am their mom. SO I KNOW THERE ARE PEOPLE WITH RECORDS THAT THEY PLEAD GUILTY TO OUT OF BEING FORCED BY THE LAW! Employers need to see future employees that they are human and no one is without fault. The judge did his job convicted people paid their price, God will be the ultimate judge of us all! 🙂

    • Angela Preston

      Dear Mother,
      I am sorry to hear about your situation. Most employers will take into account the factors you mentioned, especially consider the age of this conviction. The EEOC requires employers to consider factors like the nature and age of the offense before disqualifying you from employment. Good luck and thanks for the comment.

  • I recently answered a question on a background check through apscreen for a job position at a good company. The ACTUAL question asked if I was convicted of any crime (felony, misdemeanor, traffic, etc.) in the last 7 years. The answer was NO, as the dui conviction was in Jan. 07. My question is – is that a trick question? Why even bring it up if the answer is no. There was a short probation period after which would lead into the “7 year range”, however not being proud of it why even bring it up if not have too. These background checks are rather ignorant and keep WELL QUALIFIED people out of the workforce a lot. If I don’t “pass” this check is it because “I lied” in the employers eyes. The just be honest about your past is a joke and gives employers in most cases nothing more than a gossip issue for the day and good people back to the unemployment line. People make mistakes but seem to suffer FOREVER. What is the clear ruling on this 7 yr. reporting in PA. The question was answered honestly and I hope that I am not haunted again by the past.

    • Angela Preston

      Thanks for sharing your situation April. I don’t think employers intend for this to be a trick question. As a job applicant, it can be difficult to know the “right” answer to the question because the laws can differ from state to state, and even city to city. Most employers are looking for honesty, and it sounds like you answered the question honestly and correctly. Good luck in your future and thanks for reading.

  • Name

    In NY for convictions there is a 7 year rule. that is, a criminal conviction can be reported for up to 7 years from the date of entry. however, if the Consumer can be expected to earn $25,000 or more on the job, than the 7 year rule does not apply

    • Angela Preston

      New York and several other states have their own rules with respect to reporting arrests and convictions. Some, like New York, are tied to salary limits. Thanks for the comment!

  • RL

    also in NY:
    arrests: prohibited from reporting anything related to an arrest or criminal charge unless there has been a criminal conviction or the arrest is still pending

    • Angela Preston

      Thanks RL. New York has it’s own rules, as do about 10 other states.

  • Very good article, thanks for sharing!

  • Tom

    Here is the question I would like to know, in any of the situations mentioned above, did anyone say “no” on the application to whether they where convicted of a crime? Im curious to know if someone says “no” to that question on the application, because it has been over 7 years, what would happen if the company does or doesn’t do a background check? And what would happen if the felony conviction does not show up if someone answers “yes”? any feedback would be great.

    • Angela Preston

      Hi Tom,
      Obviously I cannot speak to the situations mentioned in the comments, but keep in mind that under the FCRA there is no seven year limitation for convictions. Some states have their own laws that limit employers from asking about convictions beyond the seven years, but most states follow the FCRA. If someone discloses a conviction, employers will consider the information, but a disclosure is usually treated much more favorably than if an applicant conceals a conviction. Again, each situation is fact specific and depends on the state, the type of job, and the age and the type of offense. Thanks for the comment!

  • Name Reg

    I was convicted of a felony in California back in 2008. I was released in 2010. I was discharged from parole in 2012. Now I know California does not check criminal history beyond 7 years for a non-government job. my question is, is it 7 years from date of conviction, release, or discharge?

    • Angela Preston

      Dear Name Reg,
      Following the FTC’s argument in the Moran case, the date of conviction is the date of the adverse event. Following the FTC’s logic, the seven years should be from the conviction date in 2008. Please keep in mind that this is not a legal opinion, nor should it be taken as legal advice. Thanks for reading and for your comment.

  • Careful Reader

    The comments here seem to be overlooking the fact that this article is discussing NON CONVICTION INFORMATION.

    CONVICTIONS can be reported indefinitely per a 1998 “lets screw people for the rest of their lives” hysteria law.

    • Angela Preston

      Dear Careful Reader,
      You are correct, as the article points out, that the FCRA exempts convictions from the seven year rule. However, a number of states limit the reporting of conviction information to seven years. In addition, the EEOC guidance requires employers to consider the age of the offense in order to prevent discrimination. Thanks for the comment.

  • Timothy anon

    So in a nut shell if I had say a C class which is 7 years. It would count the second I was arrested and not my sentence date correct.

  • The conservative approach would be to begin the clock from the date of arrest.

    • Timothy anon

      Thank you Nick, I appreciate your help greatly. People kept telling me disposition date, But according to this blog it would be as what you have stated. Once again thank you for your help mate.