Criminal Record - Job and Employment Decisions

Employers might check for criminal records when conducting employment background checks.

Employee rights protections regarding criminal records 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.

At this writing, 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 civil rights organizations.

Restrictions vary by state. But, overall:

• Employers typically may not automatically disqualify job candidates, solely because they have criminal records.
• Employers typically may not ask about or consider a juvenile criminal record to make job or other employment decisions.
• Employers typically have the right to ask about and conduct an adult criminal record search 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. So, some might not enforce all of the above. In fact, a few states have not imposed any restrictions on employers. But, the Equal Employment Opportunity Commission (EEOC) has at the Federal level, based on employment discrimination laws.

For example, if an employer automatically declines to hire a qualified job applicant solely because he or she has a criminal record, the EEOC might consider it to be employment discrimination if the applicant is a member of a minority group.

To avoid EEOC discrimination legalities, 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 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.

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. To start your research, see State Labor Laws. Alternately or additionally, try contacting one or more of the following. For contact information, click the links or check the state government pages in the local phone directory.

• State attorney general
• State labor department
• State equal employment opportunity commission or equivalent

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, 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, but the related laws vary by state. If generally allowed, either will likely require court approval. 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. Typically, an appropriate attorney to consult 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 on the Web using the Google form below.