Are you among the estimated one in four Americans with a criminal record? If so, you might have a tough job hunt. Surveys show that a majority of employers –92%, according to one survey – perform criminal background checks when hiring for some or all positions. If a prospective employer learns that you have an arrest or conviction record, you might find it difficult to compete, especially in today’s tight job market.
Job seekers with criminal records do have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. However, Arkansas is one of the small number of states that has not legislated in this area.
There are two federal laws that protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the problem of accuracy. Criminal background checks may include errors, such as information on convictions that have been expunged, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, 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 do all of the following:
- Get the applicants written consent ahead of time.
- Tell 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 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.
No State Protections in Arkansas
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. Some states require employers to consider whether the offense bears a reasonable relationship to the job. Some states prohibit employers from considering older offenses. And, some states provide guidance to employers on what they should and should not ask about criminal records in interviews.
However, Arkansas has not legislated in this area. Therefore, if an Arkansas employer turns you down for a job based on your criminal record, you will have to rely on federal law, as described above, for recourse.