Prior Arrests & Employment Law

January 20, 2016

Federal employment law does not prohibit employers from asking about an applicant’s criminal history. However, federal Equal Employment Opportunity (EEO) laws do make it illegal for employers to discriminate when using criminal history for information. For example, Title VII of the Civil Rights Act of 1964 prohibits employers from treating people with similar criminal records differently because they are a member of a protected class. Protected classes under Title VII include: race, national origin, color, sex, and religion. Title VII does not allow employers to use screening practices that look at an applicant’s criminal history if 1. Such a policy significantly disadvantages protected classes, and 2. If such policies do not actually help the employer accurately determine if the applicant is likely to be a responsible, reliable, or safe employee.

However, some states require certain employers to conduct criminal record checks for specific convictions before hiring employees or else risk suffering the legal consequences of negligent hiring. Employers required to perform criminal record checks prior to hiring are typically engaged in businesses that involve so-called “vulnerable individuals” such as children and elderly adults. Examples include childcare, education and home health care.

Many state’s laws also limit an employer’s permissible use of arrest and conviction records in making employment decisions. These anti-discrimination laws may forbid employers from asking about arrest records or require employers to wait until late in the hiring process before being able to ask about conviction records.

The Difference Between Arrest Records and Conviction Records

The fact that an individual was arrested is not proof that he or she engaged in criminal conduct, no matter how many times that person was arrested in the past. Therefore, an arrest, alone, may not be used to justify an adverse employment action against an employee or applicant (such as, not hiring, or firing). However, an employer or potential employer may investigate an arrest as well as any pending charges and the alleged circumstances that lead to the arrest. Employers can base a decision on their investigation if the circumstances of the pending arrest substantially relate to the circumstances of the job. An arrest could be substantially related to potential employment if the circumstances of an offense (like how it happened) are comparable to the circumstances of the job.

A conviction means an applicant or employee either pled guilty to a felony, misdemeanor, or other offense or was found guilty after a trial and issued a sentence, such as a fine, probation or imprisonment.

Not all criminal convictions are searchable. If a person was adjudicated a juvenile delinquent or found to be a youthful offender, the court sealed his or her criminal record and the facts and circumstances of that charge due to the person’s age.

Also, an employer could inquire about whether an employee has been previously arrested. The employer could make an adverse employment decision based on an employee’s lack of candor regarding their past arrest or criminal record. In August 2015, the United States 7th Circuit Court of Appeals upheld an employer’s decision not to hire an applicant based on the applicant’s denial of a prior arrest, and subsequent admission after being confronted with his arrest record (see Sweatt v. Union Pacific Railroad Company).

Employers often obtain an applicant’s or employee’s criminal history information from consumer reporting agencies (CRA) that must comply the Fair Credit Reporting Act (FCRA). For example, FCRA requires employers to:

• Get your permission before asking a CRA for your criminal history report;
• Provide you a copy of the report and a summary of your rights before taking an adverse employment action based on information in the report;
• Provide you notice if they decide not to hire or promote you based on the information in the CRA report.

To learn more about FCRA, visit the Federal Trade Commission’s (FTC) website and reach out to PCW Law Firm.