Updated January 15, 2016
The long-term ramifications of a criminal conviction are often more devastating than immediate penalties like jail time and fines. Nowhere is the stigma of a conviction more prominent than in the employment field: Those with criminal records may struggle to find jobs because of employer questions and background checks. But all isn’t necessarily lost for a job hunter with a checkered past. (For more information on this topic, see Getting Hired With an Arrest or Conviction Record and State Laws on Use of Arrests and Convictions in Employment.)
In 2013, Target, then the second-largest retail company in the U.S., announced its plans to “ban the box”—to omit questions about prospective employees’ criminal records in job applications. Independent of the policies of companies like Target, several state governments have enacted ban-the-box laws that apply to government employers, private employers, or both. Many cities and counties have followed suit.
The theory behind banning the box is that ex-offenders don’t have a reasonable chance at reintegration into society if they can’t, despite their best efforts, find work. But ban-the-box laws don’t end all conviction-related inquiries: Employers typically may ask about pasts offenses when applicants reach an interview or a later step in the hiring process. Of course, at this point, the hope is that the would-be employee’s demeanor—and explanation of any past criminality—provide fair context.
That potential employers can ever ask about prior convictions is troubling for many job applicants. But there may still be hope—in the legal system. States regularly allow those who were convicted of certain classes of crimes to expunge or seal their criminal records. For example, in California, private employers usually may not inquire as to expunged convictions or participation in diversion programs, not to mention arrests and detentions that didn’t lead to convictions. (Cal. Labor Code § 432.7.) (These employers, however, may generally ask about criminal charges that are still pending.) State and federal law can also block third parties from including in their background checks information relating to "old" cases—for example, arrest records that are more than seven years old. (See the federal Fair Credit Reporting Act; the pay a position offers and the statute of limitations for an offense can also affect whether a reporting agency can disclose information.)
Other remedies may also be helpful to those with prior convictions, including record-sealing pursuant to a factual innocence finding and ensuring that certain kinds of arrests are designated as detentions.
If you are currently facing criminal charges, you should seek the help of an experienced defense attorney for many reasons. That lawyer can advise you of the applicable law in you jurisdiction, including potential employment effects of a conviction. Even after conviction, consulting such a lawyer may be worthwhile in helping you obtain any post-conviction relief that may be available.
You may also consider consulting an employment attorney, who can discuss with you limitations on questions employers can ask, exceptions allowing them to ask about experiences with the criminal process, and any federal law that may apply. Such an attorney can also tell you how to handle questions about your past.