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 – a whopping 92%, according to one survey! – perform criminal background checks when hiring for at least some positions. If a potential 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. Connecticut also provides a number of protections for job seekers with criminal records.
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.
Connecticut Protections for Job Seekers With Criminal Records
States take a variety of approaches to employer use of criminal records. 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. And, some states provide guidance to employers on what they should and should not ask about criminal records in interviews.
Connecticut state policy encourages hiring qualified applicants with criminal records. State law also prohibits state and local agencies from denying applicants a license, permit, registration, or other authorization to engage in a particular trade solely on the basis of a criminal conviction, unless the agency determines that the applicant isn’t suitable based on:
- the nature of the crime and its relationship to the job
- any rehabilitation the person has completed, and
- how long it has been since the conviction.
Agencies may not consider an applicant’s arrest record.
If employers ask any questions about an applicant’s criminal record, the application form must include a clear and conspicuous notice that
- state that the applicant is not required to disclose any arrests, charges or conviction for which the records have been erased
- defines the criminal records that are subject to erasure, and
- states that an applicant with erased records will be treated as if the underlying arrest never happened, and may swear so under oath.
The portion of a job application that includes criminal history may be disclosed only to the personnel department or those in charge of hiring.
Connecticut law also imposes special obligations on consumer reporting agencies that prepare reports including criminal records. Such agencies must take steps to make sure the information in the report is complete and up to date, and must notify the applicant when and to whom is provides such a report.