Although employers may run background checks on prospective employees, federal laws, as well as the laws in some states, restrict how, when, and what type of information a prospective employer may dig into an applicant’s criminal history. And, the refusal to hire a job applicant based on his or her criminal record may amount to discrimination.
An individual’s criminal history is not considered a public record in some states. This means that a person’s plea deal, entry into a pretrial diversionary program, or other disposition of a criminal matter that did not result in a trial is not available to the public. And, arrests that do not result in a conviction are generally not part of the public record, either. Of course, a conviction at trial is a matter of public record and, therefore, is available to members of the public, including hiring employers.
If your criminal record has been "expunged," meaning that the conviction is officially treated as if it never occurred, the record should not be available to the public, including hiring employers.
Now for the reality: In this the digital age, anyone with resources can uncover any official (and even unofficial) record of an individual’s past. This includes criminal histories, even in states that treat them as confidential. However, if an employer has violated a state or federal law in digging up your criminal history, an employment lawyer may recommend that you take legal action against them.
Employers now routinely conduct background investigations of job applicants. These investigations, often conducted by outside contractors, usually involve obtaining a credit report and probing the applicant’s criminal record, among other things. However, federal law, and the law in some states, requires employers to notify the applicant prior to conducting these investigations. And, federal law (and some state laws) goes further in limiting what the employer may dig into. You will want to talk to an employment lawyer to find out if the hiring employer violated your state’s laws in conducting any background checks on you that may have turned up your criminal history.
If an employer has rejected you based on your criminal history, that may be a violation of federal law. Employer background checks are covered by a couple of different U.S. laws.
The Federal Fair Credit Reporting Act (“FCRA”) prohibits outside investigators who work for hiring employers from reporting on an applicant’s arrests or expunged convictions. However, the FCRA does not bar an employer from digging up such information on its own. An experienced employment lawyer can tell you whether an employer that rejected your application violated this law.
The Equal Employment Opportunity Commission (“EEOC”) is the federal agency charged with enforcing federal anti-discrimination laws. In 2012, the EEOC issued a policy which cautioned hiring employers that rejecting applicants based on their criminal records may violate the prohibition on race discrimination in Title VII of the Civil Rights Act of 1964.
The EEOC relied on studies showing that criminal background checks led to a disproportionate impact on African-American and Latino job applicants. The EEOC advised hiring employers not to conduct criminal background checks unless an applicant’s criminal record was directly relevant to the job for which they applied (such as a bank teller’s position, where a criminal conviction of theft may be relevant).
Ask an employment lawyer whether or not a hiring employer may have discriminated against you in its investigation into your criminal history. If the employer had a practice of conducting criminal background checks for all applicants for any position, that may be discriminatory and certainly worth investigating.
Some states go further than the federal law in limiting the information that a hiring employer can search for when considering a job applicant. And, some (such as California) even bar employers from trying to get copies of an applicant’s police or arrest records. Ask an employment lawyer in your area about what laws may apply to employers in your state.