How Are Criminal Records Used In Employment Decisions
Most if not all employers run criminal record checks on job applicants, and on employees who are being considered for promotion to jobs with a higher level of responsibility. This article will discuss what a criminal record is and how criminal records can be used in employment decisions. Federal and state laws restrict how employers can use criminal records in making hiring and promotion decisions, and California provides more legal protections for job seekers than most states do.
What Is A Criminal Record?
A criminal record is a record of a conviction of violating a law that makes an act a crime – either a misdemeanor or a felony. Traffic citations are not considered to be a criminal record, but a DUI might be. However, if a traffic incident resulted in a trial and a conviction, then this might become a criminal record.
When Are Criminal Records Used?
While the California Fair Employment and Housing Act (FEHA) prohibits any non-job-related questions about applicants or employees, it is not too much of a stretch for an employer to make the argument that criminal records relate to an applicant’s or an employee’s suitability for the job. Thus, while the employer’s right to use criminal records is well settled, it is nonetheless subject to some state and federal qualifications.
Can Employers Use Criminal Records In Hiring Decisions, and What Process Must They Use?
The short answer is yes. However, federal and state laws restrict and place qualifications on the use of criminal records in hiring decisions. The federal Fair Credit Reporting Act (FCRA) requires that a person give their written consent ahead of time. The employer is required to tell the person if an adverse action could be taken based on the contents of the report. The employer must provide the person with a copy of the report. If the report causes the employer to make an adverse decision, then the person must be told that the decision not to hire or promote is based on the report.
The federal Equal Employment Opportunity Commission (EEOC) has provided some guidance with a more liberal interpretation of the use of criminal records, but this guidance does not have the force and effect of law. Federal courts have considered this guidance in rulings from trial courts.
California law prohibits employers from asking persons about an arrest that did not result in a conviction, and employers cannot ask about a person’s requirement to participate in a pretrial or post-trial diversion program. Employers cannot seek or use arrest records that did not result in a conviction, but they can inquire about arrest records that indicate a person is awaiting trial.
California law also prohibits employers from inquiring about sealed records and records that have been eradicated according to statute or expunged. Some old marijuana offenses are also off the table. Convictions that have been judicially set aside are also prohibited from being used in employment decisions.
Public employers other than law enforcement agencies cannot ask questions about a criminal record on an employment application. The intent is to assess the applicant’s skills and abilities first.
Caveats
The discriminatory use of criminal records to deny African Americans or Latinos employment violates federal and state laws. The use of criminal records to deny an applicant or refuse a promotion should be based on the impact of such a record on employee performance.
Also, the state law prohibits the hiring of people in certain business and service activities if they have a criminal record.
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