Criminal Records in Hiring Decisions
With more than ninety-two percent of employers using background checks in hiring decisions, qualified applicants with criminal histories may not be given a fair consideration. This is particularly true in an already tight job market.

The U.S. Equal Employment Opportunity Commission (EEOC) is concerned that the use of criminal background checks in hiring decisions is having an unfair and unlawful impact on minority applicants.  The agency recently issued new guidelines that reaffirmed that it is illegal for employers to use arrest and conviction records to exclude job-seekers unless those records are directly related to the job being sought.
Employers who have a blanket policy of refusing to consider ex-offenders for employment may be committing unlawful discrimination if their background-check policies disproportionately impact minority applicants.

While the law does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions, or incarceration, employers are not permitted to discriminate based on race, ethnicity, color, national origin, religion, or sex. Similarly, employers’ use of background reports is strictly controlled by the Fair Credit Reporting Act, which places numerous procedural restrictions on the methods employers may use to obtain those reports, and on the manner in which the employer must inform applicants that it is relying on such a report.
This means that if you have been denied a job, denied a promotion, or fired because of a prior arrest or conviction, you may be able to bring a discrimination claim, or a claim under the Fair Credit Reporting Act, against the employer.
What You Can Do
• Save all documents relating to your job application or employment.

• If you believe you were not hired because of an arrest or conviction, or would like more information about your rights, you can contact the employment discrimination lawyers at Nichols Kaster for a free consultation via toll-free telephone at 877-448-0492 or via email at intake@nka.com.
Who May Be Impacted
• An estimated 65 million people in the United States—or 1 in 4 adults—have an arrest or conviction record that can show up on a routine criminal background check for employment, according to the Council on Crime and Justice.

• 1 in 3 black men and 1 in 6 Hispanic men will serve time in jail during their lifetimes, compared to 1 in 17 white men, according to the EEOC.
Potential Legal Claims
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. The EEOC’s recent guidance indicates that employers who have policies of not hiring people who have criminal backgrounds may violate the law in the following ways:
• Disparate Impact: A seemingly neutral employment policy, such as a criminal background check, that disproportionately excludes applicants based on race or national origin may be illegal if the employer cannot demonstrate that the policy is job related for the positions in question and consistent with business necessity.

For instance, because black and Hispanic men are arrested and convicted at a statistically higher rate than white men, on average, excluding individuals from employment based on the existence of a criminal record may illegally screen out minority applicants.

Instead, if employers are excluding applicants based on their criminal records, the underlying offense must be “job related and consistent with a business necessity.”

In considering the criminal history of an applicant or employee, an employer is to analyze the (1) nature and seriousness of the crime, (2) the time elapsed, and (3) the nature of the job held or sought. The employer also is justified in excluding the worker if there is data linking the criminal conduct to work performance or behavior.

If you feel that you were not fairly considered for employment, or if you were fired based on your criminal background, you should consider taking action.

Arrest Versus Conviction: Simply being arrested does not prove that you have committed a crime, and being excluded as a job candidate based on an arrest alone may be illegal. However, an employer may make an employment decision based on the activity that resulted in the arrest if it is job related.

Disparate Treatment: It is illegal for an employer to treat criminal history information differently for different applicants or employees, based on their race or national origin. This means that two applicants with similar criminal histories—white and black applicants with misdemeanor convictions within the past five years, for instance—must be treated the same.
The Fair Credit Reporting Act
• If employers conduct a criminal background check, they also must comply with the legal requirements of the Fair Credit Reporting Act (FCRA):

o Applicants and employees must be given stand-alone, written notice prior to the background check.

o Applicants and employees must provide written permission for the background check.

o At least 5 days before an employer can reject an applicant based on the background check, it must provide a letter saying it may take adverse action based on the background check, provide the applicant with a copy of the report and allow time for the applicant to correct inaccurate information.

o After any adverse action is taken the employer must give the applicant or employee notice of that fact.

o An employer who violates these requirements may be liable for up to $1,000 per violation, per person.

What To Do if You Believe Your Rights May Have Been Violated
• Contact lawyers with experience in this area. The employment discrimination lawyers at Nichols Kaster, PLLP will provide a free consultation and can be reached via toll-free telephone at 877-448-0492 or via email at intake@nka.com

• Save any documents related to the application process, including a copy of the application (if you have one) and any letters you received from the employer. Also save emails, text messages, Facebook messages, and any notes you made during the process.

• Provide the employer with information you would like them to consider. If your conviction was expunged, if you have a strong job history, if you have rehabilitated yourself, or if there is other information that you think should be considered, contact the employer and ask them to reconsider your application in light of that information. Keep copies of anything you send in writing, and make notes of your conversations.

• Act quickly. Statutes of limitations may limit your ability to bring claims, so it is important that you act quickly to preserve your rights. Consider contacting a lawyer as soon as an employer notifies you that your criminal background may cause you not to be hired.

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