There are an estimated 65 million Americans with a criminal record. If you are among them, you might face an uphill battle in your job search. Surveys show that a majority of employers – 92%, according to one survey – check criminal records when hiring for some or all 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. Montana law cautions employers against considering arrests in making hiring decisions, but allows consideration of criminal convictions.
Federal Protections for Applicants With a Criminal Record
There are 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 problem of inaccurate records. 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 expunged records or arrests that didn’t lead to conviction. 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:
- Get the applicants written consent ahead of time.
- Inform 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.
- Notify 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 in the Use of 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 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.
Montana Law on Consideration of Criminal Records
State laws provide a variety of protections for job seekers with 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.
Montana’s administrative rules state that questions about an applicant’s arrest record could lead to suspicions of discriminatory intent, and should therefore not be asked. Montana employers may ask about convictions without running afoul of state law, however.