It can be challenging to look for a job even when you have lived a law-abiding life. If you have a criminal record, it can be that much more difficult.
A criminal record can certainly be a barrier to employment, but it doesn't necessarily make employment impossible. Some jobs don't require criminal background checks, and some employers are more open about hiring individuals with criminal records.
Much will depend on the type of criminal record (arrest, pending charges, or conviction), the offense type (misdemeanor, felony, sex offense), how long ago the offense occurred, and whether the record has been sealed or expunged. So it's important to understand your criminal record and know exactly what's in it.
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 many employers go through the process. If your state has a "ban-the-box" law, the law might delay when the employer can run a background check until later in the hiring process.
Let's delve into some of these records a bit more.
Convictions are the most readily and legally accessible data available to employers researching an applicant or employee's criminal history. 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 convictions.
Convictions are easily found in online database searches. Some laws restrict an employer's reliance on convictions for making employment decisions. For instance, some states prohibit employers from considering convictions older than 10 years. Some states' laws only allow an employer to consider conviction records when the crime bears a relationship to the job, such as considering a theft conviction for a banking job.
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.
Arrest records that didn't result in criminal charges 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. In some states, an employer can only look at recent arrest records—for example, arrest records that are less than one year old.
Many states allow employers to consider an applicant's pending charges. This information tends to be easily accessible online as most jails place current mugshots and bookings on their websites. If a prosecutor has filed charges, those records are likely available in a public court database. Most states (including California) allow employers to ask applicants if they have pending charges and may use arrest and charging records in active cases when making employment decisions. 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. (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 should be made here:
If you suspect that you were denied a job based on the expunged conviction, you might 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. 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 (2023).)
Certain jobs are sensitive in ways that justify the employer delving into an applicant's criminal history to a greater extent than most other jobs. These include jobs:
The exceptions for sensitive jobs are common in both state and federal laws. They may allow these employers to view an applicant's full criminal history.
Various state and federal laws limit the kinds of criminal records that an employer can access about an applicant or employee. Their remedies vary.
The federal Fair Credit Reporting Act (FCRA) limits what information may be included in outside consumer reports conducted on individuals for employment purposes. The law requires these reports to include up-to-date information and prohibits the inclusion of arrest and conviction records that are more than seven years old. If an agency violates these requirements, the FCRA permits an individual to file a lawsuit against the consumer reporting agency. (15 U.S.C. §§ 1681c, 1681k (2023).)
Over half the states and the federal government have some type of ban-the-box law that delays when a prospective employer can ask about your criminal history. Usually, the background check must be delayed until after an employer makes a conditional offer of employment. These laws differ in their application. Some apply to only public employers, while others apply to public and private employers. An employer who violates the law may face civil penalties (from the state) or a lawsuit. (5 U.S.C. §§ 9201 to 9204 (2023).)
Some state laws restrict employer access to certain criminal records and give the applicant or employee the right to file a lawsuit against the employer for damages (for example, see California Labor Code § 432.7 (2023)). Some states even make it a crime for an employer to violate the prohibition. (Kan. Stat. §§ 22-4710 (2023).)
The Equal Employment Opportunity Commission (EEOC) issued policy guidelines that provide best practices regarding the use of an applicant's criminal history information by employers. According to EEOC guidance, employers should not make adverse employment decisions based on an applicant's criminal history unless the record is directly related to the job in question, a so-called business necessity. Employers should also consider the circumstances of the offense and how long ago the conduct occurred. An employer who violates this guidance could face a discrimination lawsuit.
It can be difficult to know if employers are complying with laws and policy guidance regarding the use of criminal records in hiring. If you suspect a prospective employer isn't following the law, talk to a lawyer about what legal remedies may be available—such as filing discrimination lawsuits.
Because legal remedies can take time, try to be proactive before you start applying for jobs to give yourself a leg up. Here are some tips.
Be sure to check your 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 and databases to check include:
If you find inaccurate information, there should be a way to correct it. Check the court or agency website for information on how to contest or correct inaccurate data.
Many states have expanded their criminal record expungement laws. Even if you weren't eligible in the past, keep checking your state's laws to see if any changes made could benefit you. Certain states have begun automatically expunging older or minor records—so if you're lucky, the work may have already been done for you.
Many states have legal aid organizations or law schools that host expungement clinics to help people clear their records. These organizations may have up-to-date information on your state's expungement laws as well.
Search for an organization in your community that helps people with criminal records get jobs. Some states have reentry experts working in the corrections department or in a workforce agency. These reentry experts often provide advice on resume writing and tips for explaining your criminal record in an interview. They might also run "Second Chance Job Fairs" and can tell you if your state has a ban-the-box law and how it applies to you.
Below are some organizations that help people with criminal records find employment.
To find more information regarding state and federal fair chance employment laws, check out:
If you think your rights have been violated or would like to know more about federal and state laws governing employer criminal background checks, contact an employment lawyer in your area with experience in these laws.