Why Didn’t That Record Return? Understanding Background Screening Limitations

Background screening is a critical component of the hiring process, yet it is often misunderstood. Employers expect a straightforward process—submit a request, receive a complete background check, and make an informed hiring decision. However, the reality is far more complex.

At the 2025 Day with DISA conference, Chad Ascar, Director of Compliance Integrations at DISA, explained why certain records may not appear in background checks, the legal constraints around screening, and how employers can navigate these challenges while remaining compliant.

Many employers assume that background screening is a simple process, but multiple factors influence whether a record appears in a report. The accuracy and completeness of background checks depend on legal restrictions, court system processes, and the availability of identifying information.

Several key elements make up a background check, including name, Social Security number, date of birth, prior addresses, driver’s license number, and email address.

However, even with all this information, missing records can still occur due to legal regulations, expungements, or system limitations.

The Fair Credit Reporting Act is the federal law governing background checks and consumer reports. It regulates how information is collected, stored, and shared by consumer reporting agencies. Under this law, certain types of information cannot be reported indefinitely, including:

• Bankruptcies, reportable for ten years
• Civil suits, judgments, and arrest records, reportable for seven years
• Paid tax liens, reportable for seven years
• Accounts sent to collections or charged-off debts, reportable for seven years
• Any other adverse information, reportable for seven years
• Criminal convictions, reportable indefinitely unless state laws impose restrictions

Individuals have the right to dispute inaccuracies in their reports, and consumer reporting agencies must investigate and correct errors. This means an employer may run a background check expecting certain information to appear, only to find that it has been legally removed.

While the Fair Credit Reporting Act provides a federal framework, state and local laws impose additional restrictions on what background checks can include.

Certain states limit how far back background checks can go. These “seven-year states” prohibit reporting of non-conviction information older than seven years. These states include California, Kansas, Maryland, Massachusetts, New Hampshire, New Mexico, New York, and Washington.

Other states restrict the reporting of certain types of records, such as:

• California prohibits reporting non-felony marijuana convictions older than two years
• Georgia restricts first offender discharge or treatment cases
• Kentucky and Louisiana prohibit reporting of open or pending cases
• Virginia restricts reporting of personal marijuana consumption records that are not listed as criminal

Salary restrictions also affect background screening in some states. For example, in New York, Maryland, and Washington, have salary thresholds and unless the candidate’s expected salary meets or exceeds those amounts information returned may be limited to no more than seven years.

Ban the Box and Fair Chance laws are designed to give individuals with criminal records a fair opportunity in the hiring process by delaying when an employer can ask about criminal history. These laws vary widely by location, with different rules for public and private employers.

Some jurisdictions only restrict asking about criminal history in the early stages of hiring, while others impose additional requirements, such as individualized assessments of criminal records and job-relatedness considerations.

For example, unincorporated Los Angeles County prohibits considering convictions that have since been decriminalized or minor infractions unless driving is essential to the job. Prince George’s County, Maryland, restricts consideration of non-violent felonies where the sentence was completed at least five years ago. Massachusetts prohibits employers from asking about misdemeanors more than three years old.

Employers operating in multiple states must carefully navigate these laws to remain compliant while still conducting effective background screenings.

Another major reason a record may not return in a background check is that it has been expunged, sealed, or pardoned. While these terms are often used interchangeably, they have different legal meanings.

An expunged record is completely erased from both private and public records. A sealed record is no longer publicly available but may still be accessed by law enforcement or government agencies. A pardoned record is a conviction for which the penalty has been removed or reduced, but it remains on record.

Several states have passed Clean Slate Laws that automatically seal certain convictions after a set period.

In New York, misdemeanors will be sealed three years after last conviction and felonies will be sealed eight years after last conviction, provided there are no pending charges. California’s Clean Slate Law seals misdemeanor convictions one year after the case ends and felony convictions four years after the case ends.

Because of these laws, an employer may expect to see a conviction on a background check, only to find that it has been legally sealed or removed from public records.

Another reason a background check may not return certain records is the removal of personal identifiers from public records. Many jurisdictions have begun redacting personally identifiable information such as date of birth and Social Security number.

Without these identifiers, it becomes much harder to accurately match records to an individual, especially for candidates with common names. Employers may assume a background check is missing information when, in reality, it is simply not accessible due to court ordered restrictions.

Employers need to recognize that background screening is not a perfect science. Many factors influence whether a record appears in a background check, including legal constraints, court record limitations, and privacy laws.

To ensure compliance while maintaining a strong background screening process, employers should:

1. Understand the Fair Credit Reporting Act and state-specific laws that regulate reportability and background check timelines

2. Stay up to date on Ban the Box and Fair Chance laws to ensure hiring policies align with state and local requirements

3. Recognize the impact of Clean Slate Laws, expungements, and sealed records, which may remove past convictions from reports

4. Work with a trusted background screening provider that can help navigate the complexities of global and domestic compliance

5. Develop policies that balance hiring compliance with workplace safety, ensuring that all screening decisions are based on legally reportable information

Navigating the complexities of background screening requires expertise, legal knowledge, and compliance-driven solutions. DISA Global Solutions provides comprehensive background checks tailored to state and federal regulations. The company offers expert guidance on the Fair Credit Reporting Act, Ban the Box laws, and Clean Slate Laws.

DISA also provides solutions to mitigate the challenges of missing identifiers and restricted court records. With ongoing compliance monitoring, employers can stay up to date with changing laws.

With the legal landscape constantly evolving, partnering with a trusted screening provider like DISA ensures employers stay compliant while making informed hiring decisions.

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Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout North America and Europe, DISA’s comprehensive scope of services includes background screening, drug and alcohol testing, DOT & HR compliance, occupational health services, and I-9/ E-Verify. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.