Most companies include an applicant background check prior to offering positions to interested individuals. Additionally, some companies ask on their applications if you have a Criminal Record history or any current convictions. For many people, this may not pose a problem. However, if you have a history of misdemeanors, felonies, a juvenile record, or any other arrest or conviction, you may be anxious that the company may discover your past and reject you for the position. You should never lie on an application, but what do you do in these scenarios?
Having a criminal record can be a major roadblock in achieving employment and succeeding in life, but that doesn’t mean it’s impossible to find a fulfilling career. There are steps you can take to ensure that your possible employer understands your history and is willing to give you a shot despite any setbacks on your permanent record.
Let’s find out what it means to have a criminal record, and what employment rights you have — no matter what your history may be.
Do I Have a Criminal Record?
What constitutes as a criminal record? Are infractions as small as a speeding ticket going to prevent you from landing a job? The basic definition of a criminal record is any history of being convicted of a crime — meaning those convicted are guilty of that crime.
Unfortunately, criminal records are fairly common in the United States. According to the Sentencing Project, a nonprofit group focused on criminal justice and reform, about one in three Americans have some form of a criminal record. In total, that’s about 70 to 100 million Americans.
Much of this is due to the ramping up of incarceration that began in the 1980s and reached its peak in the 1990s. Additionally, minority groups — primarily people of color — are most affected in cases of hyper-criminalization and incarceration, primarily due to socio-economic status and the hyper-policing of black communities in urban areas. Unfortunately, years of cracking down on even minor, non-violent crimes has caused the United States to have the highest-per-capita prison population in the world.
However, even if you haven’t spent time behind bars, having an arrest record or a misdemeanor conviction (with no jail time) can have major effects on your employment. Many employers seem to prefer a “one strike, you’re out” rule when it comes to reviewing applicants with a criminal record, and these barriers can have long-lasting effects on your career and life.
What Will Show Up in a Criminal Background Check?
This really depends on what kind of background check someone is running on you, and what they are looking for. In general, criminal records can contain the following information:
When there is reasonable doubt or evidence to suggest that you may be in violation of the law, you may be arrested for a crime (whether committed or not) and this may show up on a background check. Later, your arrest and subsequent charges may turn into a conviction (guilty) or may be dismissed by the courts (not guilty).
Infraction (aka: Petty Offense or Minor Offense)
Small, minor, or petty offenses are considered infractions, and most infractions do not require a trial by jury and rarely result in an arrest. In the United States, many infractions will result in a fine that must be paid by the assumed guilty party. Traditionally, infractions will not show up on most detailed criminal background checks, unless it first resulted in an arrest.
Not as serious as a felony, but more serious than an infraction, misdemeanors are considered crimes of low seriousness. Sometimes repeat misdemeanor offenses can become felony convictions.
The most severe classification for a crime is a felony, and these are generally reserved for serious crimes that cause direct harm to another individual or exceed a certain threshold of financial cost for victims.
Young offenders of crimes may be tried in juvenile court and receive a juvenile conviction, which traditionally have more lenient sentences than adults. The age of adulthood is dependent on the state in which the crime was committed, and can vary across the United States from age 16-19. For most states, the age of adulthood is 18. Juvenile individuals, however, can still be convicted of adult crimes if the severity of the crime warrants an adult conviction.
Many juvenile records are “sealed” or hidden by the court system after the defendant has reached adulthood, if that person goes through the process of expungement. If successful in expunging the record, then a juvenile conviction will not show up on a criminal background check, and employers do not have to be notified of the juvenile conviction.
To have a juvenile record expunged:
- The defendant must be legally an adult (as determined by the state in which the crime was committed)
- Five years has to have passed since the conviction or court proceeding
- As an adult, the defendant cannot commit any crimes (especially related to, or in a similar vein as the juvenile conviction)
Some felony juvenile convictions will not be eligible for expungement, depending on local laws in the state in which the crime was committed.
Arrest Record Vs Conviction
A common misconception or area of confusion for both applicants and hiring managers is the difference between an arrest and a conviction. If a hiring manager performs a detailed background check on you that includes an arrest record and finds that you’ve been arrested for a crime, they may throw out your application without a second thought.
However, being arrested does not mean you are guilty of said crime: it only means that there is reasonable belief to assume you committed a crime at the time of your arrest. You can only be found guilty (or convicted) of that crime if you admit to it and plead guilty, or are found guilty by a jury of your peers.
Not all background checks will be detailed enough to show arrest records, but some companies will spend the extra money required to get an extensive background check, while others may be required by law (or due to the nature of their business) to investigate arrest records. There are three possible designations that may appear on a detailed background check in relation to an arrest record:
You have been arrested for a crime, but are still awaiting trial and conviction (whether not-guilty or guilty).
Arrest / Non Conviction
You were arrested for a crime, but were found not-guilty by jury or the trial was dismissed by a judge for other reasons (mistrial, lack of evidence, etc).
Arrest / Conviction
You were arrested for a crime, and were found guilty, either by plea deal or by a jury.
Unfortunately, even innocent individuals can struggle to find employment if they have an arrest record or are currently awaiting a trial. Criminal trials can take months to process, and in that time you may struggle to secure a job if you are looking for employment. Additionally, an arrest record can remain on a background check for up to seven years after the arrest — depending on the background check company that is being used and the state you are applying in. (For more information on state-specific rights, see “Know Your Rights” below.)
If you have been arrested but not convicted of a crime, it may be worthwhile to notify the hiring manager in advance, so they are not surprised by any information that may come to light with a background check. If you have the opportunity, you may be able to explain your situation — that you were found not-guilty or that it was an arrest that was later dismissed by the courts for whatever valid reason was given.
Why Do Companies Perform Criminal Background Checks?
Most companies are only concerned with certain criminal records that might cause their business to be held liable for negligent hiring practices — or the practice of hiring employees that have a history of violence or dangerous behavior and may harm others; whether employees, customers, clients, or even total strangers.
However, other companies or government organizations may be more selective with their applicants due to the nature of the job. For example, most felony convictions may immediately disqualify you from working as a police officer, prison guard, or security personnel.
Depending on what crime was committed, when it happened, and if it was dismissed or expunged, your record could have varying effects on your employment eligibility.
Can Criminal Background Checks be Incorrect?
Although not very common, there are several ways in which a company may receive a faulty or incorrect criminal background check. Some examples of this may include:
- Criminal record information that is mismatched, or contains the criminal record of someone else other than yourself (such as if you share the same name or similar information)
- Reports that include expunged records or sealed juvenile records
- Incomplete reports that don’t show if a charge was dropped of if you were exonerated (cleared) of the charge
- Misleading information on a report, such as if a report showed multiple listings for a single offense
- Misclassification of charges on a report, such as being charged for a misdemeanor, but the report says you were charged with a felony
Luckily, you may have the ability to dispute your report if you believe your criminal background check was incorrect or inaccurate. More information on this under the section “Know Your Rights.”
Know Your Rights
Luckily, even if you have a criminal record, you still have rights when it comes to seeking out employment. Employers are prohibited from practicing discriminatory behavior, even in certain cases of criminal history of an applicant. This means you have certain protections through the Equal Employment Opportunity Commission (EEOC) and Title VII of the Civil Rights Act of 1964. Additionally, you also are protected by the Fair Credit Reporting Act (FCRA) and some local laws, depending on the individual employment laws of your state.
What Should You Disclose and When?
When it comes to disclosing your criminal record, it can be difficult to assess when it’s the right time and what you should say. Should you report it when you are applying to the company? Or should you wait until you’ve had an interview, a second interview, or a third interview?
Depending on where you live, you may not have to disclose your criminal history at all. Similarly, you may not have to disclose your record if any of these circumstances pertain to you:
- You were convicted as a juvenile and were able to expunge/seal your record as an adult
- You have an arrest that is pending or didn’t result in a conviction
- You’re going through a pre-trial phase for an offense that isn’t criminal by statute (such as for petty crimes)
- You were charged for a minor drug offense, but a certain number of years has passed (dependent on your state)
- You have expunged or erased past convictions, either through a judge’s decision or by obtaining a certificate of rehabilitation
If none of these circumstances apply to you, and you are asked on an application or by an interviewer if you have any arrests or convictions, you should be forthcoming about that information. Make sure you know what your record is so that a criminal record check doesn’t surprise the hiring manager with any new information. You don’t have to list out every detail of the trial or the crime itself, but you should be honest about what may appear on your report.
Additionally, be aware of what they are asking: are they asking about prior arrests? Or are they asking about prior convictions, such as misdemeanors or felonies? Be sure to answer only what they are asking of you.
State Specific Disclosure Laws
Each state has their own laws and regulations that relate to criminal background checks on applicants. Most states require that interested applicants first sign a waiver with their application or with a job offer that grants the employer the right to investigate their criminal background through a third party company. In exchange for an applicant’s signature, the employer must provide an explanation if they decide not to hire the applicant based on their record, and must also provide a copy of the background check and information on how to dispute the information in case it is incorrect.
However, some states do not require applicants to sign waivers, and some states are actually prohibited from asking all together — based on laws that were inspired by the movement “Ban the Box” that is now implemented in 11 states for private employers — unless having a clean record is an essential aspect of the job. You can find more information on individual state laws listed on Workplace Fairness.
Understand Employer Rights and Responsibilities
Besides the laws that are specific to your state, you also have protection through federal laws and regulations. These laws protect both existing employees and interested applicants, and if you are applying to a job but have a criminal record, understanding these laws can help you prepare for job interviews or dispute claims if need be.
Civil Rights Act of 1964: Title VII
The federal government — through the EEOC — has recognized that many individuals with prior convictions or arrests often fall into minority groups: primarily African American and Latino men. Because of this, any blanket policy that an employer implements that prevents those with an arrest or conviction record from being hired could be racially discriminatory due to the disparate impact this may have on black and Latino men. Unfortunately, this hasn’t stopped many employers from still falling into the trap of not offering jobs to those with prior convictions. However, it does provide you with some backup in case you are struggling to find employment.
There are two types of discriminatory claims that the EEOC has laid out for employers, and that could protect you from racial discrimination in employment:
- Disparate Treatment: If companies treat applicants of different races or nationalities differently than others, it is racially discriminatory treatment. For example: an employer only performs background checks on non-white applicants, but not on white applicants — or an employer believes a black applicant with a juvenile drug conviction poses more risk than a white applicant with a similar conviction. Both of these examples fall under disparate treatment, as applicants that belong to a racial minority are treated unfairly by the employer.
- Disparate Impact: If an employer creates and applies a uniform policy (such as a refusal to hire anyone with a criminal record) that has a disproportionately negative effect on applicants that belong to a racial minority, then it qualifies as disparate impact and is discriminatory.
Additionally, the EEOC has created a three-part test to help employers determine if an arrest or conviction could be detrimental to the business if they employ the person in question:
- Consider the nature and gravity of the offense, if the offense was particularly violent in nature or if it could result in additional problems down the road (for example: a sexual assault conviction could signify that the applicant may sexually harass coworkers)
- Consider the nature of the job, and if the conviction would require additional supervision or other barriers that would create disadvantages for the business
- Consider how much time has passed since the conviction (a conviction within the past year should be held with more weight than a conviction that happened 15-20 years ago)
Even with this test, employers should provide any and all applicants with an opportunity to explain themselves or to account for why their conviction does not disqualify them from the position. If you are given the opportunity to do that, you may want to explain to the employer that your conviction does not pose a risk to the business for whatever reason. Your record may also be inaccurate, and the employer should provide you with an opportunity to straighten things out. Additionally, if you have any history of rehabilitation, prior work, or other related information that can demonstrate how you’ve changed since your conviction, you should be prepared to provide or explain that information.
If you believe that an employer has rejected you unfairly due to your criminal record, and you qualify for either a disparate impact or a disparate treatment claim, you can file a charge of discrimination with your local EEOC office.
Fair Credit Reporting Act (FCRA)
Although it may be surprising to see that the FCRA also applies to your criminal record, the FCRA requires a strict following of specific guidelines for all consumer reporting agencies — even those that perform criminal background checks.
The FCRA has a few specific rules that apply to criminal background checks. They include:
- The background check agency may not include arrests that happened over seven years ago, unless the position being applied for pays over $75,000 a year. Convictions are not subject to the same time limit, and can remain on the report indefinitely (or until it is expunged).
- Consumer reporting agencies must take reasonable steps to ensure the information they are providing is accurate and updated.
- If you feel your report is inaccurate or not updated (such as with recent expungements), then you must report the issue to the agency, and the consumer reporting agency must conduct an investigation to the best of their ability.
- If the agency still refuses to correct the issue, or you believe their investigation was not thorough, then you can report them to the Consumer Financial Protection Bureau, or file a lawsuit. Keep in mind, this only works if your record is inaccurate, and if a business decides not to hire you because of your actual and correct criminal record, then your case will not hold water in court.
- Any employer that utilizes a third party agency to conduct criminal background checks must first get the written consent of the applicant before performing the background check. If the employer plans not to hire the applicant based on their criminal background check, then they must notify the applicant of their decision and why, and must provide a copy of the report as well as information on how to dispute it to the applicant.
- There are also state-specific laws that create further requirements for employers and reporting agencies. You can find more legal information on those laws with NOLO.
Even with these laws, applying to a job with a criminal record can be a difficult challenge to overcome. However, more and more employers are recognizing the impact criminal records can have on otherwise well-qualified and talented employee candidates, and many hiring managers are knowingly offering jobs to those with prior convictions or arrests.
If you have a criminal record, be sure to be honest and upfront about your past when prompted, and focus on what you have learned from the experience. Everyone deserves a second or even third chance, as long as you are able to show true remorse and acknowledgement for wrongdoing, and can put forth effort to sincerely improve yourself. It may be an uphill battle, but arming yourself with the knowledge you need to overcome these obstacles is the first step in changing your trajectory.
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