Job-Hunting with a Criminal Record

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There are 65 million adults in the United States with a record of arrest or conviction that can interfere with their ability to find and keep a job.

A reported 90 percent of U.S. employers now use criminal background checks for their job applicants. This is up from only 50 percent in 1996. The increased use of background checks results from the ability of computers to discover and reveal even minor or decades-old convictions. Many companies now provide this service.

Discrimination and Criminal Background

A quarter-century ago, the U.S. Equal Employment Opportunity Commission (EEOC) warned employers that blanket employment policies excluding anyone with an arrest or conviction could lead to claims of discrimination. This was because of the much higher arrest and conviction rates of African American and Latino men.

To address the dramatically increased use of criminal background checks, in April 2012 the EEOC published updated guidelines on this subject. These guidelines make it more difficult for employers to systematically rule out hiring anyone with a criminal record.

Exclusions Must Be Job-Related

Applicants with criminal records can be excluded only when an employer can demonstrate that the reasons were “job-related and consistent with business necessity.”

In particular, the EEOC provides a three-factor test, which employers should use to make sure that any exclusion on the basis of criminal record accurately distinguishes between those who pose an unacceptable risk and those who do not.

The employer must consider:

• The nature and gravity of the criminal offense or conduct
• The length of time that has passed since the offense, conduct or completion of a sentence
• The nature of the job held

Even if this test indicates a risk, the careful employer will allow the job applicant to provide additional information to explain why he or she should not be excluded.

Faulty Criminal Background Checks

Job applicants should be aware that there are many faulty criminal background records in circulation. Under the Fair Credit Reporting Act, companies that provide criminal background checks should follow reasonable procedures to prevent obviously inaccurate information from being provided to employers. Make sure your report is accurate.

An Employment Lawyer Can Help

The law surrounding the use of criminal background checks in making employment decisions is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information about your situation, please contact an employment lawyer.

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