Are you one of the estimated one in four Americans with a criminal record? If so, you might find job hunting difficult. Surveys show that a majority of employers – a whopping 92%, according to one survey! – pull criminal records when hiring for some or all positions. If you have a history of arrests or convictions, you might find it tough to compete for jobs, especially in the current economic climate.
There are some legal protections for job seekers with criminal records. Federal law and the laws of many states place some limits on how employers can use these records in making job decisions. Minnesota recently became one of a handful of states to "ban the box" by prohibiting employers from asking about criminal records on their employment applications.
Two federal laws provide limited protection to applicants with criminal records.
Title VII: Discrimination Based on Criminal Records
Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in 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 general 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. 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.
The Fair Credit Reporting Act: Inaccurate Records
The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. Reports created by criminal background check firms may include errors, such as 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), information on convictions that have been expunged, misclassification of crimes, and even records that belong to another person with the same name.
The FCRA imposes responsibilities 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.
- Inform 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.
- Notify the applicant once the employer makes a final decision not to consider the applicant based on the report.
The firms that provide background checks must take reasonable steps to make sure that the information they provide is accurate and up to date. 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.
Minnesota Law on Use of Criminal Records
Some states have passed laws restricting how employers may use an applicant’s criminal record in making job decisions. Some states prohibit employers from considering older offenses. 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. And, some states provide guidance to employers on what they should and should not ask about criminal records in interviews.
Minnesota recently passed a "ban the box" law. Employers may not ask, consider, or require applicants to disclose criminal history until they are selected for an interview or, if no interview is held, until a conditional offer of employment is made. However, employers may notify applicants that particular criminal records will disqualify the applicant from certain positions.
Minnesota has also enacted a protection for employers who comply with this law. If the employer is sued in civil court based on the employee's actions, the employee's criminal history won't be admissible if the lawsuit is based on the employer's compliance with the ban the box law. (This information also won't be admissible if the employee's record consisted only of arrests or charges that didn't result in conviction; the employee was pardoned or the record was sealed before the acts leading to the lawsuit took place; or the employee's job duties didn't create any greater risk to the public than that posed by the employee being employed in general or interacting with the public while off duty.)
Minnesota’s Department of Human Rights cautions employers about the possibility of discrimination when relying on criminal records. Its “Hiring and Interviewing” page indicates that employers should consider the whether a conviction is recent and job-related when making hiring decisions. It also advises employers that it’s a good idea to inform applicants, when they apply, that these factors will be considered. Otherwise, there could be a “chilling effect” on applicants, who may decide not to submit an application because they have a criminal record.