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, 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. However, West Virginia has not passed any legal protections for job seekers with criminal records.
Federal Laws Protecting Job Seekers
Two federal laws provide limited protection to applicants with criminal records.
Title VII: Protection Against Discrimination
The federal law that prohibits job 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 protects employees and applicants from policies or practices that disproportionately screen out members 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 guilty of race discrimination.
The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces Title VII, has issued guidance for employers, explaining how they can screen out applicants who might be dangerous or pose a safety 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 guidance states 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: 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 may 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 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 West Virginia 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 have passed laws restricting how employers may use an applicant’s criminal record in making job decisions. And, some states prohibit employers from asking about arrest records.
West Virginia is one of the minority of states that has not legislated in this area. However, West Virginia does offer some guidance for employers and job seekers on the types of questions employers may ask about arrests and convictions in its online Pre-employment Inquiries Technical Assistance Guide. The Guide indicates that employers should limit their questions to convictions that bear a direct relationship to the job and have not been sealed or expunged by court order. The Guide states that the employer should consider the nature of the crime, how recent it was, and any efforts the applicant has made at rehabilitation. And, the employer should include a disclaimer (for example, on an application form) stating that a conviction will not necessarily bar the applicant from employment.