If you are among the estimated one in four Americans with a criminal record, you might have a tough time in your job search. Surveys show that a majority of employers – a whopping 92%, according to one survey – perform criminal background checks when hiring, at least for certain positions. If a prospective employer learns that you have an arrest or conviction record, you might find it difficult to compete, especially in today’s tight job market.
There are some legal protections for job seekers with criminal records. Federal and state laws place some limits on how employers can use these records in making job decisions. However, Alaska is one of the small number of states that has not legislated in this area (although it does provide guidelines for employers on asking about arrests and convictions, as explained below).
Federal Laws that Protect Job Seekers With a Criminal Record
There are two federal laws that afford some rights to applicants with criminal records. The Fair Credit Reporting Act (FCRA) addresses the problem of inaccurate background checks. Criminal background checks may include errors, such as misclassification of crimes, multiple listings of the same offense, information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), and even records that belong to another person with the same name.
The FCRA imposes obligations both on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:
- Get the applicant’s consent, in writing, before running a check.
- Notify the applicant if the employer plans to disqualify him or her based on the contents of the report. In this situation, the employer must also give the applicant a copy of the report.
- Inform the applicant after the employer makes a final decision not to hire him or her based on the information in the report.
Firms that run background checks must take reasonable steps to make sure that the information they provide is current and accurate. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.
Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.
The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. Employers must consider the type of offense, how serious it was, how long ago it was committed, and the nature of the job (including how much supervision the employee will have and how much the employee will be required to interact with others) in deciding whether a particular offense is disqualifying. And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.
No State Protections in Alaska
Some states prohibit employers from asking about arrest records or records that have been sealed or expunged. Some states have passed laws restricting how employers may use an applicant’s criminal record in making job decisions. Some states require employers to consider whether the offense bears a reasonable relationship to the job. Some states prohibit employers from considering older offenses. And, some states provide guidance to employers on what they should and should not ask about criminal records in interviews.
Alaska hasn’t passed a law limiting employer use of criminal records in hiring or other employment decisions. However, Alaska has published a guide for employers, the Alaska Employer Handbook, which covers pre-employment questions about criminal arrests and convictions. The Handbook points out that employers should not use arrests, alone, as a basis for rejecting an applicant. It also states that employers should have a reasonable basis for even asking applicants about their arrest records. Whether or not an employer can legally turn down an applicant based on a conviction will depend on the facts, including the relationship of the offense to the job.
The Handbook is not a statement of Alaska law on this topic. Instead, it is an effort to summarize federal discrimination law relating to arrests and convictions as it stood when the Handbook was published. Since the Handbook was issued, the EEOC has issued detailed guidance on employer use of criminal records in hiring, as discussed above. Therefore, if an Alaska employer turns you down for a job based on your criminal record, you will have to rely on federal law, as described above, for recourse.