It’s challenging to look for a job even when you have lived a life as virtuous as Mother Theresa, as honest as Abe Lincoln, and as noble as Nelson Mandela. If you, like most of us, have had a little more Lindsey Lohan than Dalai Lama in your past, you may have to think about how much dirt an employer can dig up on you. The answer is complicated but rest assured: it’s more than you like and less than they want.
Accessibility of Criminal Histories in General
Criminal histories are not in the public record in some states, including California, and those states restrict access to such information with certain exceptions. Convictions are public record, however. And the modern, digital reality is that employers can find out a lot about applicants and employees just by digging around on the Internet. Data searches may reveal an arrest but not the outcome (in other words, whether the individual was acquitted, convicted, sent to a diversion program, or released without charge).
Arrests that do not lead to formal charges are treated differently under the law from convictions and arrests pending trial.
A conviction is a plea, verdict, or judgment of guilt regardless of whether the person charged is sentenced. Convictions include pleas of nolo contendere, sometimes called “no contest” pleas. Most employers look into an applicant's or employee’s convictions.
Convictions are the most readily and legally accessible data available to employers researching an applicant or employee’s criminal history. Convictions are easily found in data base searches. Some laws restrict an employer’s reliance on convictions for making employment decisions, such as California, which allows employers to consider only convictions within seven years prior to an employment application. And decisions based on convictions may violate Title VII (as discussed below). But, for the most part, employers may base employment decisions on convictions.
Arrest records are records of arrest and detention that do not result in a conviction or guilty plea. Employer questions about arrests are barred in many states and viewed as potentially discriminatory under federal guidelines.
Arrests pending trial
An employer can ask if an applicant or employee has been arrested pending trial, and may use an arrest pending trial in making employment decisions in many states (including California). The reason is that the arrest may still result in a conviction, which would be fair game to the employer.
A criminal conviction may be expunged from an individual’s record by order of a court. A conviction that is expunged is to be treated as if it never occurred. As a result, most states prohibit employers from denying employment to or firing individuals based on expunged convictions.
Two points must be made here:
- An order expunging a conviction does not just happen on its own—the convicted individual must make a motion to the appropriate court for the order, and
- In this era of data that never dies, an expunged record is a bit like some of Gwyneth Paltrow’s gowns: not much protection from a full view.
In other words, if you have a conviction, seek to have it expunged. But, if you apply for a job, it is entirely possible that the employer will still be able to find the conviction (although it should bear a notation regarding the expungement).
If you suspect that you were denied a job based on the expunged conviction, you may have a hard time proving it, so enter the interview process with that in mind and watch for evidence that the employer referred to prohibited information about you. And always ask for a copy of any background check, consumer credit, or investigative report that an employer has on you. Some states, like California, require employers to provide such reports and even to notify the applicant or employee when a report is sought. (Cal. Civ. Code § 1785.20.5.)
If the employer hired an outside investigator to find the expunged conviction, it violated federal law and the applicant may have a remedy under that law. It is called the Federal Fair Credit Reporting Act (“FCRA”).
There are a couple of federal laws that limit the kinds of criminal records about an applicant or employee that an employer may access.
Federal Fair Credit Reporting Act
This act bars outside investigators hired by employers from reporting on individuals’ arrests and expunged convictions. (5 U.S.C. § 1681.) This law does not apply to investigations that an employer conducts itself. FCRA allows employers to ask about and investigate any convictions on an applicant/employee’s record. And, FCRA does not bar employers from directly asking the applicant/employee about prohibited information! So, an employer who asks if you have been arrested in an on-line application is not violating FCRA, but is violating the Act if it hires an investigator to research your arrest record.
This law does have teeth: The Federal Trade Commission (FTC) is the agency that enforces FCRA. In August 2012, the FTC recovered $2.6 million in a lawsuit against a background check company that had reported expunged conviction records of applicants.
More information on the Fair Credit Reporting Act may be found here: What Is the Fair Credit Reporting Act?
EEOC policy guidance
Although a policy guidance issued by the Equal Employment Opportunity Commission (EEOC) does not have the force of law, it will be widely followed and can provide a basis for challenging an employer’s actions. In April 2012, the EEOC issued a policy guidance that said an employer that makes an employment decision based on an applicant/employee’s criminal history “may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.” The EEOC based this position on research indicating that employer criminal background checks disproportionately and negatively affected Black and Latino job applicants.
Best practices by employers, according to the EEOC guidance, preclude inquiries into an applicant/employee’s criminal history unless such inquiry is directly related to the job in question, a so-called business necessity. So, the fact that a person has a marijuana possession conviction does not logically make that person a poor candidate for a barista position. On the other hand, a person’s arrest for child molestation may be considered by a day care facility when making a hiring decision, according to the EEOC guidance.
Clearly, under this policy guidance, a blanket rejection of job applicants for arrests (or even convictions), regardless of the circumstances, is suspect.
The EEOC guidance also encourages employers to make individualized assessments of individuals and give applicants and employees an opportunity to show that because the information uncoveredis not relevant to the employer’s business necessity, they should not be rejected or fired because of it.
Many states, including California, restrict the information that an employer may legally search for or use in making employment decisions. Most of these laws impose the greatest restriction on records of arrest without conviction, while some impose restrictions even on convictions (such as those that occurred more than a specified number of years in the past, or those that have no relationship to the employer’s business necessity).
But states that have such laws also have exceptions for public safety--sensitive occupations or those that deal with vulnerable people, as discussed below.
The California Labor Code is an example of a state law that prohibits an employer from seeking to obtain or demanding a copy of an applicant's or employee’s police or arrest record, with certain exceptions. (Cal. Lab. Code § 432.7.) However, the Labor Code does allow employers to ask if applicants if they have been arrested and are waiting to go to trial, or if they are out on bail after an arrest.
The exceptions for sensitive jobs are common in both state and federal laws.
Exceptions for Sensitive Jobs
Certain jobs are sensitive in ways that justify the employer delving into an applicant's or employee’s criminal history to a greater extent than most other jobs. These include jobs:
- requiring governmental security clearance
- with the federal government
- with law enforcement agencies
- with hospitals, particularly positions with patient contact or access to drugs
- with daycare or disabled care facilities, and
- that are similarly sensitive.
The exceptions vary from state to state.
There are a various formal, legal remedies available to people harmed by employers who have accessed prohibited information. And, there are also informal measures that individuals may take to protect their rights.
Formal, legal remedies
Some state laws restricting employer access to arrest records give the applicant/employee the right to file a lawsuit against the employer for damages (for example, California Labor Code § 432.7). Some states, including California, even make it a crime for an employer to violate the prohibition.
If an employer has used an outside company to investigate an applicant's or employee’s criminal history, a complaint may be filed with the FTC at www.ftccomplaintassistant.gov/. Complaints under state laws may be filed with the state attorney general. Check the National Association of Attorneys General at www.naag.org to find out if your state gives you the right to file a complaint.
In addition, the FCRA provides that individuals who have suffered denial or loss of employment due to a violation of that Act may file a private lawsuit in federal court. And, individuals may also have a private right of action under the applicable state law.
Forewarned is forearmed goes the old saw, and it’s as true in the job hunt as it is elsewhere. Check your own records and search databases for information about your criminal history if you have one. If you can find it, so can an employer. Specific records/databases to check include:
- court files and records
- DMV records (a DUI is a criminal conviction), and
- your own (and your friends’) social networking sites. (Employers and their consultants are skilled at scanning “metadata” to figure out if you might have had some run-ins with the law. For example, that photo of you at the Occupy Seattle barricades may lead to other information.)
In short, curate yourself! You should not be surprised by the information others can dig up on you. Even if a law prohibits an employer from doing something, it is only effective if it stops them or if you catch them violating it. In other words, laws are words on paper and their power to protect is limited. You have to be proactive in protecting your own information.
Ask an Attorney
If you would like to know more about your rights under federal and/or state laws governing employer criminal background checks, contact an employment lawyer in your area with experience in these laws.