Searching and applying for jobs is stressful for everyone, but for jobseekers with a criminal history, worrying about whether that will be used against them can make the process even more overwhelming. Unfortunately, statistics do show that it is still more difficult for those with criminal histories to find employment than for those with clean records. However, there are some important protections that you should be aware of if you or someone you know has a criminal history and is seeking employment.
It used to be entirely legal (and very common) for employers to screen their applications and refuse employment to anyone with any history of convictions or even arrests, simply because they thought those applicants were less trustworthy or would be bad employees. This is no longer the case. The Equal Employment Opportunity Commission (EEOC), the agency that enforces federal laws against employment discrimination, has said that using criminal background checks in this way is discrimination because it disproportionately affects minority job applicants. In other words, because certain minority groups (African American and Hispanic men, in particular) make up a much greater portion of those arrested and incarcerated than their portion of the general U.S. population, those same minority groups are also more severely affected by such broad use of background checks. According to the EEOC, this means that some kinds of criminal background checks violate the law and are amount to job discrimination.
The EEOC does NOT, however, outlaw all criminal background checks in the hiring process. It simply gives more detailed guidelines for employers to follow in order to make sure that their policies do not violate anyone’s rights. These guidelines are federal, so they apply across the country to both public and private employers, as long as they have 15 or more employees. (Your state or city may offer additional protections, and we will address some of those later in this article. If you have questions about whether a particular protection applies to you, consider contacting an attorney.) Generally, employers cannot have a policy that excludes every applicant with a criminal history, or even every applicant with a certain type of crime on their record. A potential employer can only refuse to hire based upon the results of a criminal background check if it is related to the person’s ability to do the job safely and successfully.
There are three major factors that employers should look at when deciding whether an applicant’s criminal history should affect the hiring decision. The first is the “nature and gravity” of the crime committed, or in other words, the kind of criminal conduct that occurred and how severe it was. Was it a misdemeanor traffic violation or something more serious? The second consideration is the “time that has passed since the offense or conduct and/or the completion of the sentence.” Did the crime occur a month ago, or has it been 25 years? Has a good deal of time passed since then without anything new on the applicant’s record? Finally, the third factor is the nature of the job for which the person is applying. Remember that a criminal record must be related to a potential employee’s ability to perform the job safely and successfully, so considering the nature of the job is an important factor.
If, after considering these factors, an employer decides not to hire someone because of his/her criminal history, the EEOC states that the employer should notify the applicant of the reasons for the denial and give the applicant an opportunity for an individualized assessment. It is up to the applicant whether or not to take advantage of that opportunity, and, if she decides not to, the employer can still decide not to hire her. If she does want the assessment, it is an opportunity to present information and evidence regarding the particular circumstances of the crime, any rehabilitation that has happened since, or any other reasons the person believes she is capable of performing the job’s duties despite her criminal background. The employer must then consider this new information in making a final decision, but is not required to hire the applicant or ignore the criminal record.
It is very important when discussing any matters related to criminal records to understand the difference between arrests and convictions, since both may be seen by potential employers during the course of a criminal background check. An arrest means that there was probable cause to believe that the person committed a certain crime; there may or may not be charges, and those charges could end up being dismissed. With only an arrest on the record, the person has not been proven guilty of any crime. Convictions, on the other hand, are considered proof that the person did commit the crime that is listed. Because arrest records do not actually show proof that a crime was committed, the EEOC states that they should never be used on their own as the basis of a decision to reject a candidate. However, if information comes to light because of an arrest record (for example, that someone was in a given place at a given time), and, after confirming the circumstances with the applicant, it turns out that the person was violating a job-related, non-discriminatory policy, that information may be used as a reason not to hire. This is more likely to come up in the context of decisions to fire or discipline existing employees, because they are subject to far more company policies and rules, but it could also apply in a hiring context. Refusing to hire someone based only on arrest records, though, is very likely to be found discriminatory.
As mentioned above, many states and cities have laws that offer other protections to employees in addition to the federal standards. This is the case for much of the region that we at The Law Offices of David J. Berney serve. For example, the Pennsylvania Human Relations Act applies employers with four or more employees. The City of Philadelphia has an ordinance that prohibits discrimination by both public and private sector employers with 1 or more employees from asking about any arrests that are not currently pending or convictions on their applications or during the first interview. After the first interview, they can ask about arrests that are pending and any convictions, but they can never ask about arrests that are not pending. In New Jersey, a law was recently signed and will go into effect on March 1, 2015, banning public and private employers with 15 or more employees from requesting a criminal background check until after the application and first interview. They also cannot consider any expunged or pardoned convictions. The State of Delaware also recently enacted a law addressing this issue. Delaware law applies only to public employers, but it prohibits both criminal background and credit checks before the application and first interview have been conducted, and it requires employers to consider the three factors discussed above when reviewing a criminal history.
