If you are one of the estimated one in four Americans with a criminal record, you might be in for a tough job search. Surveys show that a majority of employers – an incredible 92%, according to one survey! – check criminal records 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 for jobs, 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. Hawaii is one of the most protective states when it comes to criminal background checks: Employers may not discriminate based on an applicant’s arrest or court record, and the law limits an employer’s consideration of convictions in hiring.
States take a variety of approaches to employer use of 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. Hawaii has taken an “all of the above” approach: It prohibits employers from considering certain records, and it restricts an employer’s ability to use conviction records in hiring.
Hawaii law makes it illegal for an employer to discriminate in hiring, firing, compensation, or other terms of employment based on an applicant or employee’s arrest or court record. Essentially, this law puts arrest and court records in the same category as race, gender, or disability: They are off-limits to employers when job decisions are made.
If an applicant’s arrest or conviction has been expunged, the applicant may state that no record exists and may respond to questions as a person with no record would respond.
A Hawaii employer may inquire about convictions only after making a conditional offer of employment. If the applicant has a conviction record that has a rational relationship to the job duties and responsibilities, the employer may withdraw the offer. Only convictions within the previous ten years may be considered, unless state or federal law provides otherwise (for example, for transportation security screeners or teachers).
There are also two federal laws that protect applicants with criminal records, at least in some situations. The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. 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 do all of the following:
Background checking firms 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. Employers who conduct criminal background checks must consider the type of offense, how serious it was, how long ago it was committed, and the nature of the job (including how much supervision the employee will have and how much the employee will be required to interact with others) in deciding whether a particular offense is disqualifying. 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.