Estimates show that as many as one in four Americans have a criminal record. If you are one of them, you might find it tough to get a job. Surveys show that a majority of employers – 92%, according to one recent survey – check criminal records when hiring for at least some positions. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete 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. Michigan law protects applicants with misdemeanor arrests, but allows employers to ask about misdemeanor or felony convictions and felony arrests.
Federal Protections for Applicants With a Criminal Record
Two federal laws provide some protections for applicants with criminal records.
The Fair Credit Reporting Act: Inaccurate Records
The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. It’s bad enough to be turned down for a job based on your actual criminal record, but some people are rejected because their criminal background check contains another person’s crimes or erroneously includes sealed records or charges that were dropped. 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:
- Get the applicants written consent ahead of time.
- 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.
Firms that run background checks 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: Discrimination Based on Criminal Records
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 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.
Michigan Law on Use of Criminal Records
Michigan law prohibits employers from asking about misdemeanor arrests that did not lead to conviction. However, employers may ask about convictions for misdemeanors and arrests and convictions for felonies.
Michigan’s Department of Civil Rights has put out a Pre-Employment Inquiry Guide, which gives employers guidance on hiring and interview questions. In addition to the rules above on questions about arrests and convictions, the guide indicates that an employer may not adopt a blanket policy of refusing to consider or hire anyone who has a criminal conviction.