It's challenging to look for a job even when you have lived a law-abiding life. If you're facing pending criminal charges or have a conviction on record, you may have to think about how much dirt an employer can dig up on you. The answer may surprise you.
Criminal records include more than convictions. A person's criminal record generally consists of arrest records, jail bookings, criminal charges, probation status, convictions, and other criminal justice data (like sex offender registration requirements). State data privacy laws and court rules will dictate what information is public, confidential, or restricted. (Your state might use different terms and meanings.)
Generally speaking, public records are just that—public and accessible to anyone who's interested in them. Confidential data often means only certain government officials can look at them, such as law enforcement, judges, prosecutors, and defense attorneys. And restricted records might have limitations on who can request them and for what purpose, such as only employers hiring for sensitive positions. All states have different data privacy laws, definitions, and terminology.
For public records (like conviction records), pretty much anyone with a computer can find the information. Many public criminal records can be accessed online through the state's court website or on the websites of other criminal justice agencies. Accessing restricted and confidential records will usually involve a more cumbersome process, such as submitting a formal application to the agency holding the record.
But the modern, digital reality is that employers can find out a lot about applicants and employees just by digging around on the internet for news articles, mugshot websites, or private criminal background checks. These informal searches can be problematic if the information is outdated or incomplete. For instance, a data search may reveal an arrest but not the outcome, such as whether the individual was acquitted, convicted, sent to a diversion program, or released without charges.
Let's delve into some of these records a bit more.
A conviction is a plea, verdict, or judgment of guilt regardless of whether the person charged is sentenced. Convictions also 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 online database searches. Some laws restrict an employer's reliance on convictions for making employment decisions. For instance, California 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 may include information on arrests, bookings, and jail detention. Two main types of arrest records exist—those that lead to formal charges and those that don't. When it comes to access, these records are treated very differently.
No formal charges. These arrest records are often restricted or confidential because they didn't get the prosecutor's stamp of approval to move forward or the defendant successfully completed diversion. Employer questions about arrests are barred in many states and viewed as potentially discriminatory under federal guidelines.
Arrest pending trial. This information is generally public and tends to be easily accessible online as most jails place current mugshots and bookings on their websites. Plus, 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.
Certain arrest records and criminal convictions can be expunged (sealed or deleted) from an individual's record by order of a court. (Again, states have very different laws on who qualifies and what records are eligible for expungement.) Arrest records that don't result in criminal charges or a conviction tend to be the easiest to expunge. Convictions can be more difficult but, if expunged, the conviction is 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:
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.)
A couple of federal laws limit the kinds of criminal records that an employer can access about an applicant or employee.
The FCRA bars outside investigators hired by employers from reporting on individuals' arrests and expunged convictions. (5 U.S.C. § 1681.) This law doesn't 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 online 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 the 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.
Although 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. The EEOC issued a policy guidance document 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 daycare 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 uncovered is 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.
There are various formal, legal remedies available to people harmed by employers who have accessed prohibited information. In addition, informal measures exist that individuals may take to protect their rights.
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 even make it a crime for an employer to violate the prohibition.
If an employer has used an outside company to unlawfully investigate an applicant's or employee's criminal history, a complaint may be filed with the FTC at www.ftccomplaintassistant.gov. Other employment screening and employee background check complaints can be made on consumerfinance.gov and eeoc.gov. Complaints under state laws may be filed with the state attorney general. Check out the Consumer Resources website to find out where to file a complaint in your state.
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.
Be sure to check your own records and search databases for information about your criminal history if you have one (or even if you don't). If you can find it, so can an employer. Specific records/databases to check include:
In short, you need to be proactive in protecting your own information. Even if the law prohibits an employer from doing something, it's only effective if it stops them or if you catch them violating it.
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.