For the estimated one in four Americans with a criminal record, job hunting can be difficult. Surveys consistently show that a majority of employers –92%, according to one survey – perform criminal background checks when hiring, at least for certain positions. If your check reveals arrests or convictions, you might find it tough to compete in the job market.
However, 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.
There are two federal laws that provide some protection to applicants with criminal records.
The Fair Credit Reporting Act: Inaccurate Records
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, misclassification of crimes, multiple listings of the same offense, 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:
- Get the applicant’s written consent before requesting a check.
- Tell the applicant if the employer plans to screen him or her out 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 once the employer makes a final decision not to consider the applicant based on the report.
Firms that provide background checks must take reasonable steps to make sure that the information they provide is current and accurate. If you dispute what’s in the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform you and any other person or company to whom it has provided the report.
Title VII: Discrimination Based on Criminal Records
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 for employers, explaining how they can screen out applicants who criminal records pose an unreasonable risk without discriminating. Employers who conduct criminal background checks 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.
State Protections in Indiana
Some states have passed laws restricting how employers may use an applicant’s criminal record in making job decisions. Some states prohibit employers from asking about arrest records or records that have been sealed or expunged. 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.
Indiana law prohibits employers from asking employees or applicants whether their criminal records have been sealed or restricted. Applicants may, on employment applications, deny arrests or convictions that appear in restricted records. (In other words, they don't have to check the box to indicate past convictions or arrests if those records are restricted.)