Guidance to Employers and Job Seekers on the Use of Criminal Records in the Hiring Process

Sidebar to the article In Search of a Job: Criminal Records as Barriers to Employment by Amy L. Solomon

A 2010 survey by the Society for Human Resource Management reported that 92 percent of employers conduct background checks on job applicants. According to the Equal Employment Opportunity Commission (EEOC), if an employer is aware of a conviction or incarceration, that information should bar someone from employment only when the conviction is closely related to the job, after considering: (1) the nature of the job, (2) the nature and seriousness of the offense, and (3) the length of time since it occurred. Because an arrest alone does not necessarily mean that someone has committed a crime, an employer should allow the person to explain the circumstances of the arrest and again assess whether the circumstances of the arrest are closely related to the job. In the vast majority of cases, employers may not automatically bar everyone with an arrest or conviction record from employment because it could have a disparate impact on communities of color, violating Title VII of the Civil Rights Act of 1964. The EEOC's guidance in this area was revised in April 2012. It now provides greater detail and direction to employers on the appropriate use of arrest and conviction records in hiring decisions.

It is important that job applicants know their rights. The Fair Credit Reporting Act (FCRA) requires employers to receive an applicant's permission, usually in writing, before asking a background screening company for a criminal history report. If the applicant does not give permission, the application for employment may not get reviewed. If a person does give permission but does not get hired because of information in the report, the potential employer has several legal obligations. Specifically, they must tell the individual:

  • The name, address and telephone number of the company that supplied the criminal history report.
  • That the company that supplied the criminal history information did not make the decision to take the adverse action and cannot give specific reasons for it.
  • About his or her right to dispute the accuracy or completeness of any information in the report, and his or her right to an additional free report from the company that supplied the criminal history report, if requested within 60 days of the adverse action.

For More Information

Back to: In Search of a Job: Criminal Records as Barriers to Employment.

Date Created: June 15, 2012