With violence, theft and criminal activity becoming greater risks in the workplace, more employers are performing background checks and asking about criminal records on job applications. In fact, employers who fail to take reasonable precautions about whom they hire can be sued if an employee with a criminal background harms someone while on the job.
There Is Hope
Do criminal record searches mean that applicants who've had a brush with the law will never find a good job, or that employers are assured they will never hire a criminal? The answer to both is no.
To begin a background check, employers normally start with the resume or job application. They need to verify past jobs to confirm where a person has worked and to make sure there are no unexplained gaps in employment. They can also review credit bureau records to find addresses associated with Social Security numbers. Even with these precautions, however, critical information can be overlooked.
When private employers check criminal records, they normally do not have access to governmental criminal databases (unless the position qualifies for a fingerprint check, such as teachers or childcare workers). Private employers can check criminal records only by going to individual courthouses and looking through the records kept by each court. With more than 10,000 courthouses in America, a nationwide criminal check is not practical without specialized assistance.
When a company hires a service to perform background checking, it is regulated by the federal Fair Credit Reporting Act. Searches can be conducted only if an applicant provides written consent. If a criminal record is found, applicants must be given an opportunity to refute its accuracy and they must receive a copy of their legal rights before the decision to deny a job is made final.
Because of the way public records are maintained, errors are always possible, and cases of mistaken identification have occurred. There are also legal limits on how far back court researchers can go in reporting convictions.
Despite these limitations, employers still find criminal record searches valuable. A search discourages applicants with something to hide and limits uncertainty in the hiring process. It also shows that an employer exercised due diligence.
Even if a criminal record exists, there are legal limitations on what information can be used by an employer.
First, an employer may not ask about or consider information about arrests or detentions that did not result in convictions. Only convictions and pending cases can be considered.
Second, an employer may not consider crimes that have been sealed or expunged, or where the applicant participated in a special pretrial alternative program.
Third, there are limits concerning misdemeanors. Most employers will ask about both felonies and misdemeanors on applications, but a misdemeanor cannot be considered if probation was completed and the case was dismissed, or for minor marijuana offenses more than two years old.
If a criminal conviction or pending case is located, does that necessarily mean that an applicant is eliminated? The answer again is no.
Courts have found that a policy of automatically denying employment can result in discrimination against certain groups. Instead, employers must examine whether there is a sound business reason not to hire an individual with a criminal record, taking into account the nature of the offense, whether it is job-related, when it occurred, and what the person has done with their life since.
What should applicants do if they are concerned about a criminal matter?
First, ask an attorney if the criminal record can be expunged or set aside by going back to court, or whether it is a type of offense that employers may legally ask about or consider.
Second, applicants can seek to rebuild their resumes by obtaining employment with people they know, or by finding employers willing to give them an opportunity, particularly in a tight job market.
Finally, honesty is always the best policy. If an employer discovers an applicant was dishonest, the denial of a job can be based upon that lack of honesty, regardless of the nature of the offense. A criminal matter honestly explained during an interview may have much less negative impact than hiding it and having an employer discover it later.