Employer Use of Arrest and Conviction Records in Vermont

Employer Use of Arrest and Conviction Records in Vermont

If you have a criminal arrest or conviction on your record, you might have a tough time landing a new job. Surveys show that a majority of employers—92%, according to one survey—run a criminal background check when hiring for some or all positions. If you are one of the estimated 65 million Americans with a criminal record, it might put you out of the running for these jobs.

Fortunately, there are some legal protections for job seekers with criminal records. Federal and Vermont law place some limits on how employers can use these records in making job decisions.

Federal Laws Protecting Job Seekers

Two federal laws provide limited protection to applicants with criminal records: Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act.

Title VII: Protection Against Discrimination

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. Title VII prohibits employers with 15 or more employees from adopting policies or practices that disproportionately screen out applicants of a particular race, ethnicity, or other protected class. 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 committing race discrimination.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, has issued guidance for employers on how they can screen out applicants who might pose a safety risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers should 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).

The EEOC guidance states that employers should give applicants with a criminal record the opportunity to explain the circumstances and provide mitigating information to show they should not be excluded based on the offense.

The Fair Credit Reporting Act: Protection Against Inaccurate Records

The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy in consumer reports, including background checks. Records generated by criminal background check firms might include errors, such as information on convictions that have been expunged, multiple listings of the same offense, misclassification of crimes, 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 another person with the same name.

The FCRA imposes responsibilities both on employers that 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 background 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.

FCRA also prohibits background check reports from including arrest records or other criminal records—except for convictions—that are more than seven years old. Convictions can be reported no matter how old. The one exception to this rule is where the applicant is applying for a position that pays $75,000 or more. For these positions, all criminal records may be included in a background check report.

Vermont Law on Employer Use of Criminal Records

In recent years, some states and cities have passed “ban-the-box” laws (also called “fair chance” laws) to prevent applicants with a criminal record from being automatically excluded from consideration for employment. These laws often prohibit employers from asking about whether the applicant has a history of arrest or conviction until a certain stage in the hiring process.

Vermont has passed a ban-the-box- law that goes into effect on July 1, 2017. Employers of all sizes may not ask applicants about their criminal history—including arrests, charges, and convictions—on an initial application of employment. However, employers may ask applicants about their criminal history later in the hiring process—for example, during an interview or after making a conditional offer of employment.

Vermont’s ban-the-box includes two exceptions to the rule. An employer may ask about criminal records on an employment application if:

  • federal or state law would disqualify (or would presumptively disqualify) an applicant who has been convicted of certain offenses, or
  • federal or state law prohibit the employer from hiring an applicant who has been convicted of certain offenses.

Even if one of the above exceptions applies, the employer may only inquire about the types of offenses that would lead to disqualification or that would prohibit the employer from hiring the applicant. And, the employer must give the applicant an opportunity to explain the circumstances of the offense.

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