Does your employer or prospective employer conduct criminal background checks? Surveys show that many do: A 2010 survey by the Society for Human Resource Management (SHRM) revealed that a whopping 92% of responding employers conducted criminal records checks on at least some job candidates, and 73% said that they conducted criminal records checks on all candidates. Although some employers disqualify applicants and employees only for certain offenses, many more simply refuse to consider any applicant who has a criminal record, period.
This practice has curtailed job opportunities for millions of people. The National Employment Law Project estimates that 65 million adults in the U.S. – about one in four – have criminal records. This article explains legal protections for those with an arrest or conviction record (and those who mistakenly appear to have one; as explained below, criminal background checks sometimes pull up inaccurate or incomplete information).
Why Employers Check Criminal Records
Conducting criminal background checks and excluding applicants with certain types of convictions can be a prudent way to promote workplace safety, protect company property, and protect vulnerable populations from abuse and predatory behavior. It can also help employers avoid liability for harm to customers and other third parties. For example, some states allow lawsuits for “negligent hiring” against employers who hire employees they should have known would engage in violent or dangerous behavior that injures others.
In certain highly regulated occupations, state or federal law may require employers to reject applicants with criminal records or with certain types of convictions. If you are applying for a position as a police officer, prison guard, or security screener, for example, government employers might be obligated to disqualify those with certain convictions on their record.
However, that doesn’t mean it makes sense to disqualify anyone who has ever had a brush with the criminal justice system. An arrest may have been erroneous, discriminatory, or worse. A decades-old conviction for drug possession, disturbing the peace, or resisting arrest may indicate no more than youthful indiscretions – and may give no relevant information about an applicant’s ability to do a job today.
Problems With Criminal Background Checks
Not everyone who is turned down for a job based on a criminal record actually has a criminal record. A criminal background check may result in incomplete or inaccurate information. According to a survey conducted by the National Consumer Law Center, advocates reported seeing the following mistakes repeatedly:
- Reports that are mismatched (that is, they contain information about a different person)
- Reports that include expunged or sealed records
- Incomplete reports (for example, that don’t include data about the ultimate disposition of the matter, such as that charges were dropped or the person was exonerated)
- Reports that provide information in a misleading way (for example, by listing one offense a number of times), and
- Reports that misclassify the offense committed.
Arrest and conviction rates also vary by race. Data cited by the Equal Employment Opportunity Commission (EEOC) show that arrest rates for African Americans and Latinos are two to three times higher than their percentage of the population. African American men and Latino men are also much more likely to be incarcerated: While one in 17 White men is expected to serve some prison time during his life, the figures narrow to one in six Latino men and one in three African American men. These numbers show that an employer policy of excluding anyone with an arrest or other criminal record could lead companies to screen out significant numbers of African American and Latino candidates.
Legal Protections for Applicants
There are two federal laws that provide some protections for employees and applicants: The Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964. In addition, your state may regulate how employers can use criminal records in hiring.
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) requires consumer reporting agencies (agencies or companies that provide reports on consumers, including criminal background checks) to follow certain guidelines when running background checks and providing employers with consumer reports. When it comes to criminal records, the agency may not include arrest records that are more than seven years old, unless the position pays more than $75,000 a year. Conviction records are not subject to a time limit.
Consumer reporting agencies must also take reasonable steps to make sure the information they provide is accurate and includes updates, such as expungement of a criminal record. If you dispute information the agency provides, the agency must conduct a reasonable investigation. Under the FCRA, an employer that hires a third party agency to conduct a criminal background check must first get the applicant’s written consent, must inform the applicant if it plans not to hire him or her based on the information in the report, and must give the applicant a copy of the report and information on how to dispute its contents.
If the criminal records report provided on you includes errors, you should ask the agency to correct them. If that doesn’t work, you can file a complaint with the Consumer Financial Protection Bureau or even file a lawsuit. However, the FCRA deals only with inaccurate reports; if a prospective employer decides not to hire you based on your actual, correct, criminal record, this law won’t help you.
Many states have additional rules that limit an employer's ability to inquire about criminal history or to use criminal history as a reason to deny employment. For more information, see State Laws on Using Arrests and Convictions in Employment.
Title VII prohibits discrimination in every aspect of employment, including screening and hiring practices. The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, issued guidance in 2012 on employer use of criminal records in hiring. The EEOC has long warned that an employer’s blanket policy of refusing to hire anyone with a criminal record could be discriminatory, given the much higher arrest rates of African Americans and Latinos.
In its policy guidance, the EEOC made clear that disqualifying applicants based on criminal records could lead to two types of discrimination claims:
- If the employer treated applicants of different races or nationalities differently in the hiring process, that could lead to a “disparate treatment” claim. For example, an employer that runs criminal background checks only on non-White applicants, excuses minor offenses by White applicants while excluding Latino applicants for the same types of records, or assumes that an African American with a youthful drug offense poses a safety risk while a White applicant with a similar offense did not, that employer is treating applicants differently based on their race or national origin.
- If the employer applies a uniform policy that has a disproportionately negative effect on applicants of certain races, that could lead to a “disparate impact” claim.
Because employers could have perfectly sound reasons for wanting to exclude applicants with certain types of offenses, the EEOC has provided a three-part test employers can use to make sure that their criminal record exclusion policy screens out only those who pose an unacceptable risk. The EEOC instructs employers to 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).
Even if this test indicates that the applicant may pose a risk, the employer should allow the applicant an opportunity to provide mitigating information demonstrating that he or she shouldn’t be excluded based on the offense. For example, the applicant might show that the criminal record is simply inaccurate. Or, the applicant might provide facts about what really happened, previous work history, rehabilitation efforts, and so on, in an effort to demonstrate that the record shouldn’t disqualify the applicant from the position.
If You Have a Criminal Record
Although the law offers some protections to applicants with a criminal record, you will still face an uphill battle in the hiring process. But don’t lose hope: A recent survey conducted by CareerBuilder revealed that half of the responding companies reported that they had knowingly hired someone with a criminal record. Hiring managers responding to the survey recommended above all else that applicants with a record should be honest and straightforward about it, emphasizing what they have learned from their past. Managers also recommended that applicants with criminal records should take opportunities to build their skills and resumes by, for example, doing volunteer work, taking classes or doing vocational training in their field, doing freelance work, or starting a business.
If you were convicted a long time ago, particularly if your offense was minor or committed while you were a juvenile, you may be able to have your record expunged or sealed. Every jurisdiction has its own rules about which offenses (and which offenders) are eligible; for more information, see Nolo's article Expunging or Sealing an Adult Criminal Record. If you successfully seal or expunge your record, most states allow you to deny the offense on application forms and in interviews. In other words, if an employer asks whether you have ever been convicted of a crime, and your conviction was expunged, you are legally entitled to answer "no." Before starting your job search, it might be worth some research to find out whether this option is available to you.