Are you one of the estimated 65 million Americans with a criminal record? If so, you might find job hunting difficult. Surveys show that a majority of employers – an amazing 92%, according to one survey – review criminal history 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. North Dakota has not legislated in this area for private employers, however.
There are two federal laws that 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 whose criminal records pose an unreasonable risk without discriminating. In deciding whether a particular offense should be disqualifying, employers must consider:
- the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on)
- the nature and gravity of the criminal offense or conduct, and
- how much time has passed since the offense or sentence.
The EEOC has also 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 federal 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.
- Notify 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 the applicant notice 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.
No North Dakota Law on Employer Use of Criminal Records
States take a variety of approaches in limiting employer use of criminal records in hiring and other employment decisions. Some states require employers to consider whether the offense bears a reasonable relationship to the job. 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.
However, North Dakota is one of the minority of states that has not legislated in this area for private employers. North Dakota puts some limits on the criminal information the state may provide to those who request it. The state may provide records of convictions, provided those records have not been purged or sealed. It may also provide records of arrests occurring in the past three years. However, North Dakota law doesn’t restrict how employers may use this information once they get it.
North Dakota’s Department of Labor has issued a brochure, “Employment Applications and Interviews,” which states that employers should not ask applicants about arrests. As the brochure states, an arrest “does not mean someone has actually committed a crime.” Instead, the brochure suggests that employers limit themselves to asking whether the applicant has been convicted of a felony.