Georgia Laws on Employer Use of Conviction and Arrest Records

If you are one of the estimated one in four Americans with a criminal record, you might be in for a tough job search. Surveys show that a majority of employers – a whopping 92%, according to one survey – perform criminal background checks when hiring for at least some positions. If a potential employer finds out that you have an arrest or conviction record, you might find it difficult to compete for jobs, especially 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. In Georgia, employers may not consider certain offenses in hiring; if a Georgia employer decides not to hire an applicant based on the applicant's criminal record, it must provide certain information about the decision.

Federal Protections for Applicants With a Criminal Record

Two federal laws protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the problem of inaccurate criminal records reports. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, 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 do all of the following:

• Get the applicant's written consent before running a check.
• Notify the applicant 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.
• Inform the applicant after the employer makes a final decision not to hire him or her based on the information in the report.

Background checking firms 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 protects applicants and employees from discrimination in every aspect of 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 blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

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 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).

And, the EEOC 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.

Georgia Laws on Use of Criminal Records

States take a variety of approaches to employer use of criminal records. 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.

Georgia law allows employers to obtain criminal records on applicants from the state's Crime Information Center, with the applicant's fingerprints or written consent. Probation following a first offense is not considered a conviction, and employers may not disqualify applicants on this basis once their probation is complete.

If a Georgia employer decides not to hire someone based on a criminal record, the employer must disclose to the applicant all information in the record and explain how it affected the employer's decision.