There are an estimated one in four Americans with a criminal record. If you are among them, you might face an uphill battle in your job search. Surveys show that a majority of employers – an incredible 92%, according to one survey – do criminal background checks when hiring for some or all positions. If a prospective 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. Colorado law protects applicants from certain questions about their criminal records.
State laws provide a variety of protections for job seekers with criminal records. 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. And, some states provide guidance to employers on what they should and should not ask about criminal records in interviews.
Colorado law prohibits employers from asking about criminal records that have been sealed. Employers may not ask employees about these records in interviews or job applications. An applicant may answer any questions about these records as if they had not occurred. For example, if an application asks whether the applicant has ever been convicted, and the applicant’s conviction has been sealed, then the applicant is legally entitled to answer “no.”
Colorado law also prohibits employers from asking applicants or employees about arrests for civil or military disobedience, unless an arrest led to a guilty plea or conviction.
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 inaccuracies in these records. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, 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:
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.