Legal criminal background checks after hire

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While most states ban the use of arrest history that did not lead to conviction in hiring decisions, most states do not ban employers from asking about arrests in interviews. Most states allow most or all potential employers to ask about arrests as well as convictions during a job interview. If you live in a state that does not prohibit employers from asking about arrests, it is important that you answer this question truthfully.

If your record is expunged, you can answer "No, I do not have a criminal record. After the record is expunged, it is legally considered to no longer exist. This includes charges or cases that were dismissed, or where you were found not guilty. This does not include multiple charges for the same offense where only some of the charges were dropped.

Generally, most state law prohibits the use of past crimes or arrest records as a factor against you in a hiring decision unless it is in some way relevant to the job position, or if your conviction bans your from working in that particular field. In some cases, the use of criminal records in a hiring decision may be discriminatory. If you think your rights may have been violated, you should contact a lawyer licensed in your state. The campaign has been growing with over counties and cities adopting Ban the Box style laws and 30 states.

Furthermore, the federal government has 'banned the box' in regards to federal employers, though not federal contractors. The following states have some form of Ban the Box laws:. Ten states have mandated the removal of conviction history questions from job applications for private employers:. Because this is a relatively new campaign, there is still debate as to whether it truly removes the bias associated with hiring individuals with criminal records. Many studies have found that these types of policies do not prevent a bias because employers are still likely to have a bias towards those they believe may have a criminal record.

This opens the doors to new issues such as racial discrimination; however, both sides believe that this campaign does more good than harm. If the chart below indicates that your state has no statute, this means there is no law that specifically addresses the issue.

However, there may be a state administrative regulation or local ordinance that does control arrest and conviction records. Call your state department of labor for more information. The following chart summarizes state laws and regulations on whether an employer can get access to an employee's or prospective employee's past arrests or convictions. It includes citations to statutes and agency websites, as available. Many states allow or require private sector employers to run background checks on workers, particularly in fields like child care, elder care, home health care, private schools, private security, and the investment industry.

What shows up on a criminal history background check?

Criminal background checks usually consist of sending the applicant's name and sometimes fingerprints to the state police or to the FBI. State law may forbid hiring people with certain kinds of prior convictions, depending on the kind of job or license involved. Federal law allows the states to establish procedures for requesting a nationwide background check to find out if a person has been "convicted of a crime that bears upon the [person's] fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.

If your state isn't listed in this chart, then it doesn't have a general statute on whether private sector employers can find out about arrests or convictions. There might be a law about your particular industry, though.

It's always a good idea to consult your state's nondiscrimination enforcement agency or labor department to see what kinds of questions you can ask. The agency guidelines are designed to help employers comply with state and federal law. For further information, contact your state's agency. Rights of employees and applicants: Unless the offense has a reasonable relationship to the occupation, an occupational license may not be denied solely on the basis of a felony or misdemeanor conviction.

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Rules for employers: May not inquire about arrest for civil or military disobedience unless it resulted in conviction. Rights of employees and applicants: May not be required to disclose any information in a sealed record; may answer questions about arrests or convictions as though they had not occurred. Rules for employers: State policy encourages hiring qualified applicants with criminal records.

If an employment application form contains any question concerning criminal history, it must include a notice in clear and conspicuous language that 1 the applicant is not required to disclose the existence of any arrest, criminal charge, or conviction, the records of which have been erased; 2 defining what criminal records are subject to erasure; and 3 any person whose criminal records have been erased will be treated as if never arrested and my swear so under oath.

Employer may not disclose information about a job applicant's criminal history except to members of the personnel department or, if there is no personnel department, person s in charge of hiring or conducting the interview. Rights of employees and applicants: May not be asked to disclose information about a criminal record that has been erased; may answer any question as though arrest or conviction never took place. May not be discriminated against in hiring or continued employment on the basis of an erased criminal record.

If conviction of a crime has been used as a basis to reject an applicant, the rejection must be in writing and specifically state the evidence presented and the reason for rejection. Rights of employees and applicants: Do not have to disclose an arrest or conviction record that has been expunged. Rights of employees and applicants: May not be disqualified to practice or pursue any occupation or profession that requires a license, permit, or certificate because of a prior conviction, unless it was for a felony or first-degree misdemeanor and is directly related to the specific line of work.

Rules for employers: In order to obtain a criminal record from the state Crime Information Center, employer must supply the individual's fingerprints or signed consent. If an adverse employment decision is made on the basis of the record, must disclose all information in the record to the employee or applicant and tell how it affected the decision. Rights of employees and applicants: Probation for a first offense is not a conviction; may not be disqualified for employment once probation is completed. Rights of employees and applicants: If an arrest or conviction has been expunged, may state that no record exists and may respond to questions as a person with no record would respond.

Rules for employers: It is a civil rights violation to ask about an arrest or criminal history record that has been expunged or sealed, or to use the fact of an arrest or criminal history record as a basis for refusing to hire or to renew employment. Law does not prohibit employer from using other means to find out if person actually engaged in conduct for which they were arrested. Rules for employers: Cannot require an employee to inspect or challenge a criminal record in order to obtain a copy of the record, but may require an applicant to sign a release to allow employer to obtain record to determine fitness for employment.

Employers can require access to criminal records for specific businesses. Rights of employees and applicants: Prior conviction cannot be used as a sole basis to deny employment or an occupational or professional license, unless conviction is for a felony and directly relates to the job or license being sought. Special situations: Protection does not apply to medical, engineering and architecture, or funeral and embalming licenses, among others listed in the statute. Rights of employees and applicants: A conviction is not an automatic bar to obtaining an occupational or professional license.

Only convictions that directly relate to the profession or occupation, that include dishonesty or false statements, that are subject to imprisonment for more than 1 year, or that involve sexual misconduct on the part of a licensee may be considered. Agency guidelines for preemployment inquiries: The Maine Human Rights Commission, "Pre-employment Inquiry Guide" , suggests that asking about arrests is an improper race-based question, but that it is okay to ask about a conviction if related to the job.

Rules for employers: May not inquire about any criminal charges that have been expunged. May not use a refusal to disclose information as sole basis for not hiring an applicant. Rights of employees and applicants: Need not refer to or give any information about an expunged charge. A professional or occupational license may not be refused or revoked simply because of a conviction; agency must consider the nature of the crime and its relation to the occupation or profession; the conviction's relevance to the applicant's fitness and qualifications; when conviction occurred and other convictions, if any; and the applicant's behavior before and after conviction.

Rules for employers: If job application has a question about prior arrests or convictions, it must include a formulated statement that appears in the statute that states that an applicant with a sealed record is entitled to answer, "No record. Rights of employees and applicants: If criminal record is sealed, may answer, "No record" to any inquiry about past arrests or convictions. Rules for employers: May not request information on any arrests or misdemeanor charges that did not result in conviction.

Legal Guidances - CCHR

Rights of employees and applicants: Employees or applicants are not making a false statement if they fail to disclose information they have a civil right to withhold. Rules for employers: State policy encourages the rehabilitation of criminal offenders; employment opportunity is considered essential to rehabilitation. Employment applications cannot ask whether an applicant has a criminal history or a pending criminal case or authorize a background check. Solicitations, advertisements, and publications may include language that welcomes people with criminal records, however.

For example, solicitations, advertisements, or publications that include language such as "People with criminal histories are encouraged to apply," and "We value diverse experiences, including prior contact with the criminal legal system" are permissible. Stigmatizing language, like "ex-felon" and "former inmate," may not be used. Employers cannot inquire about criminal history during the interview process.

The FCA allows an applicant to refuse to respond to any prohibited inquiry or statement. Such refusal or response to an illegal question shall not disqualify the applicant from the prospective employment. Inadvertent disclosures of criminal record information before a conditional offer of employment do not create employer liability.

References and Background Checks

If a legitimate inquiry not made for that purpose leads an applicant to reveal criminal history, the employer should continue its hiring process. Similarly, if an applicant asks an employer during the interview if she or he will be subject to a criminal background check, the employer may state that a criminal background check will be conducted only after a conditional offer of employment. It must then move the conversation to a different topic. Employers who make a good faith effort to exclude information regarding criminal history before extending a conditional offer of employment will not be liable under the FCA.

However, employers must never inquire about or act on non-conviction information, however or ACDs that have not been revoked. To guard against soliciting or considering non-conviction information, employers may frame inquiries by using the following language after a conditional offer is made: Have you ever been convicted of a misdemeanor or felony? If an employer hires an applicant after learning about her or his conviction history, the FCA does not require it to do anything more. An employer that wants to withdraw its conditional offer of employment, however, must first consider the Article A factors.

If, after doing so, an employer still wants to withdraw its conditional offer, it must follow the Fair Chance Process. An employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction history. If a direct relationship exists, an employer must evaluate the Article A factors to determine whether the concerns presented by the relationship have been mitigated.

Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation regarding the relevant conviction. The Fair Chance Process If, after evaluating the applicant according to Article A, an employer wishes to decline employment because a direct relationship or unreasonable risk exists, it must follow the Fair Chance Process: 1.

Fair Chance Act: Legal Enforcement Guidance

Share with the applicant a written copy of its Article A analysis; and 3. Disclosing the Inquiry The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an applicant has a criminal record, along with the date and time the employer accessed the information. The applicant must be able to see and challenge the same criminal history information relied on by the employer.

Employers who rely on criminal record information beyond what is contained in a criminal background report must also give that information to the applicant. Employers who search the Internet to obtain criminal histories must print out the pages they relied on, and such printouts must identify their source so that the applicant can verify them. Employers who check public records must provide copies of those records.

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Employers who rely on oral information must identify the interlocutor and provide a written summary of their conversation. The summary must contain the same information the employer relied on in reaching its determination.

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Oral information includes anything the applicant revealed about her or his criminal record. Sharing the Fair Chance Notice The FCA directs the Commission to determine the manner in which employers inform applicants under Article A and provide a written copy of that analysis to applicants.

The Notice requires employers to evaluate each Article A factor and choose which exception — direct relationship or unreasonable risk — the employer relies on. The Notice also contains space for the employer to articulate its conclusion.