An estimated 65 million Americans have a criminal record. That's about one out of every four people of working age. If you are one of them, you might have a difficult time getting hired. Surveys show that a majority of employers – 92%, according to one recent survey – check criminal records when hiring for some or all jobs. If a prospective employer finds out that you have an arrest or conviction record, you might be in for a tough job search, especially in the current economic climate.
Job seekers with criminal records have some legal rights, however. Federal and state laws place some limits on how employers can use these records in making job decisions. Pennsylvania law also provides some protection for applicants in this situation.
Two federal laws provide some protections for applicants with criminal records. Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, which can include unintentional race discrimination caused by excluding anyone with a criminal record. The Fair Credit Reporting Act addresses the issue of accuracy in consumer records, including criminal background checks.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in every aspect of employment, including screening practices and hiring. Arrest and incarceration rates are much higher for African Americans and Latinos, which means that an employer with a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination, even if that is not the employer's intent.
The federal agency that enforces Title VII – 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 EEOC also 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.
The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. 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:
Firms that run background checks for employers 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.
Under the FCRA, background checks of those earning less than $75,000 per year can only look back seven years for certain types of information, including:
The seven-year rule doesn't apply to criminal record checks.
Under Pennsylvania law, an employer may consider an applicant's felony or misdemeanor convictions in the hiring process only if they relate to the applicant's suitability for the job. If an employer decides not to hire someone based on his or her criminal record, the employer must so inform the applicant in writing (18 Pa. Cons. Stat. § 9125).
Under Pennsylvania's Clean Slate law, if you were convicted of a nonviolent misdemeanor and haven't had any convictions for the previous ten years, you can file a "limited access petition" in court to seal your records from public view. That means your prior conviction would not show up on a search by a potential employer.
The law also provides for automatic sealing of second- and third-degree misdemeanors that result in a sentence of less than two years, if the individual has stayed out of trouble for ten years.
Visit MyCleanSlatePA for further information about the law.
If you've experienced unlawful discrimination on the basis of a prior arrest or conviction, or you have questions about Pennsylvania's Clean Slate law, consider contacting an employment lawyer in your area. You can find one using Nolo's Lawyer Directory.