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.
Federal Protections for Applicants With a Criminal Record
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: Discrimination Based on Criminal Records
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 nature and gravity of the criminal offense or conduct
- 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
- how much time has passed since the offense or sentence.
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 Fair Credit Reporting Act: Inaccurate Records
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:
- 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.
- Tell 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 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.
Pennsylvania Law on Use of Criminal Records
Under Pennsylvania law, an employer may consider an applicant’s felony or misdemeanor convictions in the hiring process only if they directly 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.
Pennsylvania’s Human Relations Commission has issued a brochure for employers called “Pre-employment Inquiries” (available at the Commission’s Publications & FAQ page). This publication tells employers that they may not disqualify applicants based on their arrest record unless there is a business necessity: The employer’s inquiry must be substantially related to the applicant’s ability to perform the job’s duties. The publication also cautions employers against relying on conviction records in making job decisions unless their “number, nature, and recentness” make the applicant unsuitable for the position. The Commission recommends that employers who ask about criminal records include a statement that a conviction “will not necessarily disqualify you” from the position.