If you are among the estimated one in four Americans with a criminal record, you might face an uphill battle in your job search. Surveys show that a majority of employers – a whopping 92%, according to one survey! – perform criminal background checks when hiring for at least some positions. If a potential employer finds out 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 have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. Arizona also provides some protections for job seekers.
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.
Arizona law protects those applying for a business license from discrimination based on their criminal records. Unless the criminal offense has a reasonable relationship to the occupation for which the person seeks a license, an Arizona agency may not deny an occupational license solely on the basis of a felony or misdemeanor conviction.
The Attorney General’s office in Arizona has also issued a hiring guide for employers that addresses convictions (the Guide to Pre-Employment Inquiries Under the Arizona Civil Rights Act). According to the guide, employers may ask about prior convictions, including when they occurred, where they occurred, and the final disposition of the case. However, if an employer chooses to ask about prior convictions, it must include a statement that a prior conviction will not be an absolute bar to employment.
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:
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:
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.