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 in today’s job market.
Job seekers with criminal records have some legal rights. Federal laws place some limits on how employers can use these records in making job decisions. Connecticut also provides a number of protections for job seekers with criminal records.
Two federal laws protect applicants with criminal records, at least in some situations: Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act.
The Fair Credit Reporting Act (FCRA) addresses the problem of accuracy. (15 U.S.C. §§ 1681 and following.) Criminal background checks might include errors, such as incomplete information (for example, failing to report that the applicant 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 that 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.
FCRA also prohibits background check reports from including arrest records or other criminal records—except for convictions—that are more than seven years old. Convictions can be reported no matter how old. The one exception to this rule is where the applicant is applying for a position that pays $75,000 or more. For these positions, all criminal records may be included in a background check 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. (42 U.S.C. §§ 2000e and following.)
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 committing 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 should consider:
The EEOC has also 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.
In recent years, some states and cities have passed “ban-the-box” laws (also called “fair chance” laws) to prevent applicants with a criminal record from being automatically excluded from consideration for employment. These laws often prohibit employers from asking about whether the applicant has a history of arrest or conviction until a certain stage in the hiring process.
Connecticut has passed a ban-the-box- law that goes into effect on January 1, 2017. Employers of all sizes may not ask applicants about their criminal history—including arrests, charges, and convictions—on an initial application of employment. However, employers may ask about criminal history at any other point in the hiring process, such as during an interview or after making a conditional offer of employment.
Connecticut’s ban-the-box law has two exceptions. An employer may ask about criminal records on an employment application if:
Even if one of these exceptions applies, the employment application must include a clear and conspicuous notice that:
At any stage of the hiring process, Connecticut employers may not refuse to hire applicants because of criminal records which have been erased or for which the applicant has received a pardon or certificate of rehabilitation.
Connecticut law also imposes special obligations on consumer reporting agencies that prepare reports which include criminal records. Such agencies must take steps to make sure the information in the report is complete and up to date, and they must notify the applicant when and to whom they provide such a report.