If you are among the estimated one in four Americans with a criminal record, you might face an uphill battle in your job search. Surveys show that a majority of employers –92%, according to one survey – perform criminal background checks when hiring for at least some positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete, especially in today’s tight job market.
Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. California has a number of legal protections in place for job seekers.
California Protections for Job Seekers With Criminal Records
State laws provide a variety of protections for job seekers with criminal records. California places more restrictions on employers than many others. For example, California employers may not ask applicants about a prior arrest that did not lead to conviction, nor may they ask about an applicant’s referral to or participation in a pretrial or post-trial diversion program. Employers also may not seek or use records relating to these arrests. However, the law allows employers to ask about arrests for which the applicant is awaiting trial (for example, because the applicant is out on bail or has been released on his or her own recognizance pending trial).
California also prohibits employers from asking about convictions that have been sealed, expunged, or statutorily eradicated. Employers also may not ask about certain older marijuana offenses. However, an employer may ask job-related questions relating to a conviction. (California’s Department of Fair Employment and Housing publishes a guide on these and other limits on employer questions, Employment Inquiries.)
Federal Protections for Applicants With a Criminal Record
There are two federal laws that protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the problem of accuracy. Criminal background checks may include errors, such as 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), misclassification of crimes, multiple listings of the same offense, and even records that belong to someone else entirely.
The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must do all of the following:
- Get the applicants written consent ahead of time.
- Tell the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
- Notify 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 also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. 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. In deciding whether a particular offense should be disqualifying, employers must consider:
- the nature and gravity of the criminal offense or conduct
- how much time has passed since the offense or sentence, and
- the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).
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.