Are you looking for a job? If you are one of the estimated one in four Americans of working age with a criminal record, you could be in for a long job search. Surveys show that a majority of employers – a whopping 92%, according to one recent survey – run criminal background checks when hiring for at least some jobs. 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. Washington law also provides a number of protections for applicants with criminal records.
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 and the Fair Credit Reporting Act addresses the accuracy of these records.
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. Even if an employer doesn’t intend to discriminate, a general policy or practice that has the effect of disproportionately screening out applicants of a particular race, ethnicity, or other protected trait could also constitute illegal discrimination. Because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be engaging in 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).
The guidance also states 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: Accuracy of Criminal Records
The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. Criminal background checks may include errors, such as multiple listings of the same offense, 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, 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:
- Obtain 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.
- Give the applicant notice 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.
Washington Law on Use of Criminal Records
Washington is one of the states that provides the most protections for applicants with a criminal record. As for arrests, an employer who asks about arrests must consider whether the charges are still pending, have been dismissed, or have led to conviction that would adversely affect the applicant’s job performance. Employers may consider only arrests that have occurred in the past ten years.
An employer is entitled to obtain complete criminal record information on candidates from the state only:
- for purposes of securing a bond required for employment
- for applicants to positions that have access to information affecting national security, trade secrets, confidential or proprietary business information, money, or valuable items, or
- to assist in an investigation of suspected employee misconduct that may also constitute a penal offense under federal or state law.
If an employer gets such a record, it must notify the employee within 30 days of receiving it or upon completing its investigation of employee misconduct. The employer must allow the employee to examine the record.
An employer may make employment decisions based on an applicant’s conviction only if the conviction or the applicant’s release from prison occurred within the past ten years and the crime reasonably related to the job duties for the position.