Are you looking for a job? If you are one of the estimated 65 million Americans have a criminal record, you could be in for a tough job hunt. Surveys show that a majority of employers – 92%, according to one recent survey – check criminal records when hiring for some or all jobs. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete 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. Ohio law restricts the records an employer may consider in hiring.
Federal Protections for Applicants With a Criminal Record
There are two federal laws that provide some protections for applicants with criminal records. The Fair Credit Reporting Act addresses the accuracy of these records, and Title VII of the Civil Rights Act of 1964 prohibits discrimination.
The Fair Credit Reporting Act
The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. Criminal background checks may include errors, such as misclassification of crimes, information on convictions that have been expunged, 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 someone else entirely.
The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:
- Obtain the applicants written consent ahead of time.
- Give the applicant notice 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 for employers 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 prohibits discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be engaging in race discrimination, even if that isn’t the employer’s intent.
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 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 also 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.
Ohio Law on Use of Criminal Records
Ohio law allows employers to ask only about conviction records that have not been sealed and bail forfeitures that have neither been sealed nor expunged, unless the question bears a direct and substantial relationship to the job. If an applicant is questioned about a record that was sealed after a “not guilty” finding or after charges were dismissed, the applicant is entitled to answer as if the arrest and all of the ensuing legal procedures had never occurred.