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 – perform criminal background checks when hiring, at least for certain positions. If a check of your background reveals arrests or convictions, you might find it tough to compete in the job market.
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.
Two federal laws provide limited protection to applicants with criminal records.
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 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, multiple listings of the same offense, 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 do all of the following:
- 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.
- Give notice to 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 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.
Missouri 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.
Missouri has no law that specifically restricts employer use of criminal records. However, the state does prohibit discrimination in professional or occupational licensing. No one may be denied a license for a profession or occupation primarily on the basis that a prior conviction negates that person's good moral character, if the applicant has been released from incarceration by pardon, parole, or otherwise, or the applicant is on probation with no evidence of violations. The conviction may be considered, but the licensing board must also consider the crime's relation to the license, the date of conviction, the applicant's conduct since the conviction, and other evidence of the applicant's character in making a decision.