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.
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 local civil rights
organizations.
Subsequently, 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 check 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 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.
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, 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.
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