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 – 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. Wisconsin law also provides a number of protections for applicants with criminal records.
Federal Protections for Applicants With a Criminal Record
There are two federal laws that 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.
Protection Against Discrimination: Title VII
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:
- how much time has passed since the offense or sentence
- the nature and gravity of the criminal offense or conduct, 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.
Accuracy of Criminal Records: The Fair Credit Reporting Act
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.
- Give the applicant notice 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 a second 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.
Wisconsin Law on Use of Criminal Records
In Wisconsin, it is illegal discrimination for an employer to make job decisions, including decisions about whom to hire, based on an applicant’s arrest or conviction record (with the exceptions noted below). Employers may not ask applicants questions about arrests unless the charges are still pending.
Employers may decide not to hire an applicant based on his or her criminal record if:
- The applicant has a pending arrest charge that substantially relates to the job.
- The applicant has a conviction that substantially relates to the job.
- The applicant is applying for certain types of positions, including private detective or burglar alarm installation.
- The applicant is applying for a position that requires bonding, and the applicant’s criminal record would preclude bonding.
Wisconsin’s Department of Workforce Development has put out a pamphlet for employers and applicants, Fair Hiring and Avoiding Discriminatory Interview Questions, which details legal and illegal inquiries during the hiring process. In this publication, the Department advises employers who learn that an applicant has a pending arrest substantially related to the job that they may:
- suspend judgment until the case is resolved
- advise the applicant to reapply once the charges are cleared up, or
- refuse to hire the applicant.
The Department also advises employers who ask about convictions to inform applicants that a conviction may be considered only as it relates to the job in question, and that a conviction won’t necessarily disqualify the applicant from consideration.