Criminal Record - Job and Employment Decisions
Employers might check for criminal records when conducting employment background checks. If so, then employee rights protections regarding criminal record checks depend on the extent to which state laws allow employers to ask about and consider criminal records for making adverse job and other employment decisions.
Examples of adverse decisions include refusal to hire or promote employees, based on their criminal records.
Many states impose restrictions on employers when asking about and considering criminal records. Restrictions are imposed by state laws or related regulations, or guidelines established by state government agencies or local civil rights organizations.
Subsequently, restrictions vary by state, but generally:
- Employers typically may not automatically disqualify job candidates solely because they have criminal records.
- Employers typically may not ask about or consider juvenile criminal records to make job or other employment decisions.
- Employers typically have the right to ask about and consider adult criminal records to make job or other employment decisions.
- Questions about criminal records and adverse job and employment decisions based on same are limited to convictions only; but, this might not apply if applicants are trying to land law-enforcement jobs or those where security or safety is a concern.
- The type of conviction typically must be related to the applicant's suitability to perform the job, before an employer can make an adverse job or other employment decision based solely on the conviction.
Again, restrictions vary by state and so, some states might not enforce all of the above or might enforce tighter restrictions, such as for misdemeanor vs. felony convictions. A few states have not imposed any restrictions on employers regarding criminal records; but, the Equal Employment Opportunity Commission (EEOC) has at the Federal level, based on employment discrimination laws.
For example, if an employer has a blanket policy of rejecting otherwise qualified job applicants solely because they have criminal records, then the EEOC might consider it to be employment discrimination if the employer's blanket policy adversely impacts minority-group members more than others.
To avoid EEOC discrimination legalities when rejecting an applicant on the basis of his or her criminal record, an employer typically must have a justifiable business reason and must also consider certain factors. Examples of such considerations include the nature and gravity of the offense, and its relationship to the applicant's suitability to perform the job. Contact the nearest EEOC field office for more information.
Some states require certain employers to conduct criminal record checks for specific convictions before hiring employees or else potentially suffer the legal consequences of negligent hiring. Employers required to conduct criminal record checks are typically engaged in businesses that involve so-called "vulnerable individuals" such as children and elderly adults; examples include childcare, education and home healthcare.
Update: On November 2, 2015, President Obama announced executive action to "ban the box" for Federal jobs. He was referring to the check boxes next to questions on job applications that ask about applicants' criminal histories. Federal employers may still ask about such, but they must do so later in the hiring process. That's to give applicants who have criminal records a better chance of landing Federal jobs. Obama's action does not apply to Federal contractors. Several states, cities and employers have already taken steps to "ban the box."
Because restrictions vary by state, it'll take an attorney consultation or research to discover more about your employee rights regarding employer decisions based on your criminal record. An appropriate attorney might be one who specializes in either criminal or employment law in the state in which you were convicted. To start your research, see State Labor Laws; alternately or additionally, try contacting one or more of the following.
If an employer discovers that you weren't honest about your criminal record on your job application, then the employer likely has the right to refuse to hire you or later, to fire you. But, you might not be obligated under state law to report your criminal record in the first place, if it has been sealed (closed to public viewing) or expunged (essentially erased).
Criminal records of serious crimes are not likely to be sealed or expunged and those that can be will likely require court approval for either. To discover if you may "clean up" your criminal record in one of these ways to make it easier to land employment, consult an attorney. An appropriate attorney is one who specializes in expunging criminal records in the state in which you were convicted.
It's a good idea to know the documented version of your criminal record for job interviews, so that what you say about it, if asked, matches the copy an interviewer might have in hand. It's also a good idea to check its accuracy to avoid losing job opportunities thanks to false information.
To obtain a copy, start by contacting the repository of criminal records in the state in which it was filed. For contact information, ask a local police station, look it up in the state government pages of the local phone directory, or search for it using the Google form below.