If you are one of the estimated 65 million Americans – about one in four working age people in this country – with a criminal record, you might be in for a difficult job search. Surveys show that a majority of employers – a resounding 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 be in for a tough job search, especially in the current economic climate.
Job seekers with criminal records have some legal rights, however. Federal and state laws place some limits on how employers can use these records in making job decisions. Rhode Island law also restricts the records employers may consider in hiring. In 2013, Rhode Island enacted "ban the box" legislation, prohibiting employers from asking general questions about criminal history on employment applications.
Federal Protections for Applicants With a Criminal Record
There are two federal laws that provide some protections for applicants with criminal records. Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, which can include unintentional race discrimination caused by excluding anyone with a criminal record. The Fair Credit Reporting Act addresses the issue of accuracy in consumer records, including criminal background checks.
Title VII: Discrimination Based on Criminal Records
Title VII of the Civil Rights Act of 1964 prohibits discrimination in every aspect of employment, including screening practices and hiring. Arrest and incarceration rates are much higher for African Americans and Latinos, which means that an employer with a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination, even if that is not the employer’s intent.
The federal agency that enforces Title VII – 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.
The Fair Credit Reporting Act: Inaccurate Records
The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. Criminal background checks may include errors, such as 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), misclassification of crimes, 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 applicant’s 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.
- Tell 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.
Rhode Island Law on Use of Criminal Records
Rhode Island employers may not ask applicants, on a standard application form, in an interview, or otherwise, whether they have ever been arrested or charged with any crime. Employers may ask about convictions, but the following limits apply:
- Employers may not ask general questions about convictions (such as, "have you ever been convicted of a crime?") on an employment application.
- Employers may ask about convictions for specific offenses on an employment application, but only if conviction for such an offense would disqualify the applicant from holding the position under state or federal law, or would preclude bonding for a position that requires it. Even if these exceptions apply, the employer may ask only about the specific offenses that are disqualifying, not about all convictions.
- Once the applicant has reached the first interview, the employer may ask about convictions. Applicants do not have to disclose any conviction that has been expunged.
Rhode Island law also allows those who have been convicted of a crime to apply to the parole board for a Certificate of Recovery and Re-Entry. Such certificates are available only to those who have been convicted of misdemeanors or nonviolent felonies. Applicants may ask the board for a certificate after at least one year has passed since a misdemeanor conviction, or after three years have passed since a felony conviction.
The purpose of granting these certificates is to assist those with criminal records in reentering society, by providing some assurance that holders of certificates have met certain rehabilitation goals. However, employers are not legally liable for denying employment based on criminal convictions, even if the applicant holds such a certificate. In other words, employers are not required to disregard the criminal history of an applicant simply because he or she has received a certificate.