Can Employers Refuse to Hire Based on Past Criminal History?
It’s understandable that you’d have a lot on your mind when dealing with a conviction or arrest. It could be a serious deterrent to employment. Often, an employer won’t consider someone with a criminal conviction, even an arrest. Often, they’ll do a comprehensive background check, which you can find out about at UnMask.
The Short Answer: Yes
No federal law bans this type of discrimination, which comes as bad news for some job applicants. Yet, a few courts and the Equal Employment Opportunity Commission (EEOC) found it can be construed as racial discrimination. Why? For example, African Americans have disproportionately high arrest and conviction rates. Rejected candidates can argue – successfully – that using a criminal record to deny employment only serves to conceal discrimination based on race.
In response, the EEOC established guidelines due to the unequal impact of arrests and convictions on specific racial and ethnic groups. According to the rules, you can’t deny employment based on an arrest record, nor can you discriminate against a current employee on those grounds. However, if your charges are directly connected to job requirements, the employer is allowed to inquire into the matter. The Commission recommends that the employer give the employee or applicant the chance to explain their circumstances if a criminal record comes up during employment or during the job interview.
What can You Do?
In line with the above, the employer should arrange further investigation to see if the employee or applicant is telling the truth about the circumstances. Doubting their verity is understandable, if not warranted. The employee or applicant has some recourse too. Use online screening services to check what information about you is publicly available. At least you’ll be prepared for what could show up and know how to react.
Companies may be allowed to ask job candidates about convictions or arrests. It depends on the jurisdiction. In some states, the company can initiate an inquiry into prior convictions or pending charges in some cases. One such case would be if the reply has to relate to job tasks directly. Only then will it be considered relevant.
Employers are not allowed to ask candidates questions related to membership in a protective organization or about their personal life. Every inquiry they make must be relevant to the employment decision. However, background check services are widely available. You can find arrest records and booking photos (mug shots) online. All you need to know is the person’s name.
When to Contact an Attorney
Get in touch with a lawyer if it seems like you’ve been terminated or denied employment wrongfully. They will help you assess whether you can take legal action against the employer.
The most accurate and safest way to get access to your criminal record is to request it from the authority, in whose jurisdiction the offense was committed. Get in touch with the FBI if the criminal history is related to a federal crime. You’ll receive an Identity History Summary Check from Criminal Justice Services.
If your arrest didn’t result in a conviction, it can’t be used to deny you employment or terminate you in most states. While a few states do allow arrest records to be used, companies can’t bar people from employment automatically, just because they were arrested in the past.
A company can use this information to make a hiring decision if the candidate committed the crime beyond reasonable doubt and if the arrest was recent. They can also use it if there is a connection between the reason for the arrest and the position. For instance, someone who wants to work as a cashier was recently arrested for shoplifting.