Can Employers Ask Job Applicants about a Criminal Record?

Not everyone who serves time in prison stays in for life or comes out even worse than when they went in. One of the main purposes of incarceration is rehabilitation, and there are countless examples of people who do their time, are released, and go on to live productive lives. Others are wrongly imprisoned, while some serve short terms that are not long enough to turn their lives upside down. It is estimated that 65 million Americans have criminal records, and surveys reveal that 92 percent of employers check applicant criminal records. This puts a lot of people at a disadvantage when they are trying to put their futures in order.

Getting back on track is not easy following a jail or prison sentence, and one of the most important things to do is to seek and obtain a decent job. Those who are going through this challenge can face significant problems when prospective employers ask them if they have criminal records. Is it best to tell the truth, or is this protected information? What can these employers do with this information once they have it?

Are There Any Laws Prohibiting Asking about a Criminal Record?

Although federal laws do not ban companies from asking applicants about their criminal histories, there are federal Equal Employment Opportunity Commission (EEOC) laws in place to prohibit them from practicing discrimination should an applicant share criminal history information. In fact, using this kind of information to influence employment decisions could violate Title VII of the Civil Rights Act of 1964. This law prevents companies from treating applicants with similar criminal records differently because of their race, national origin, religion, or any other Title VII protected category. Employers cannot use practices or polices to screen individuals based on their criminal history information if doing so does not help the employer determine if the person is likely to be a responsible employee. It is also illegal if it puts Title VII-protected individuals at a significant disadvantage.

As for criminal background check laws, the Fair Credit Reporting Act (FCRA) comes into play when companies hire third parties to run job applicant background checks. Employers are required to get the applicant’s written consent for this and must also give written notice if they are going to reject the applicant based on that report. Applicants have the right to refuse background checks, but employers are entitled to not hire them for this very reason.

Depending on state laws, many job applications will have a box for you to check to indicate whether you have a criminal record or a conviction. Should you answer yes, an honest explanation will be required. Even though this could cost you the job, it is never smart to lie on a job application or during an interview; you could get the job and later be fired. Therefore, if you do check that box, share how you overcame your past problems and how dedicated you will be if you are hired.

Pennsylvania employers are allowed to ask applicants about their criminal histories and can legally perform background checks within the parameters explained above. Some cities have passed laws to remove these employer actions, but every company has its own employment application process. Things work a bit differently in the Garden State, as explained next.

Are There New Jersey Laws that Pertain to This Issue?

New Jersey has a so-called ban-the-box law that is part of its New Jersey Opportunity to Compete Act, and employers that have at least 15 employees cannot ask job applicants if they have criminal histories in the initial phase of a job application process. They are also prohibited from posting jobs saying that applicants with criminal records cannot apply. However, New Jersey employers are permitted to ask applicants about their criminal histories after an interview, and if the position is in emergency management, law enforcement, homeland security, the judiciary, or corrections, they are allowed to ask sooner.

They can also ask about criminal histories when background checks are required by law for the position, or if the employer sponsors a program designed for people who have criminal records. There are also laws that make applicants with criminal records ineligible for certain positions. New Jersey companies can refuse to hire applicants based on arrest or conviction records, but there are exceptions if the applicant’s record was erased through an executive pardon or expunged. Like Pennsylvania, the applicant’s written consent is required for an employer to do a background check.

There is also the Fair Chance to Compete for Jobs Act of 2019. This law prohibits private companies that hold federal contracts and federal agencies from asking job applicants about their criminal histories before making conditional offers of employment. Yet even with all these protections in place, you may still find yourself trying to complete a job application and not knowing how to answer those imposing questions.

What if I Was Arrested but Not Convicted?

Just because someone was arrested, it does not mean that they were convicted of a crime. This means that a standalone arrest record cannot be used as a basis for a negative employment action, such as not hiring, suspension, or firing. However, a conviction record demonstrates that the applicant engaged in some kind of criminal conduct. The wording on job applications can vary, so if you see a question asking if you have ever been convicted of a criminal offense, you can check the No box if that is true. If it asks if you have been convicted of a felony and you have been convicted, you will need to tell the truth about this as well. Remember, if you were convicted for a misdemeanor offense or got a parking ticket, these do not qualify as felonies, so read carefully and always check the appropriate box.

Am I Being Discriminated Against?

Employers must allow these applicants to explain what happened and are entitled to ask questions to see if the account given is credible. If the applicant explains what happened and makes a sincere effort to get the job, they may get hired. When a background check is obtained from a consumer reporting agency, it must comply with FCRA guidelines. In addition to getting the applicant’s permission, employers have to give the applicants a copy of the report, along with a summary of their rights, before taking any negative employment actions based on the reports. If they do decide not to hire or promote, or choose to fire the applicant, the employer has to send the applicant certain notices that explain their decisions.

In Pennsylvania, job applicants and employees do have certain protections under state laws. Employers might be able to use your criminal history to make an employment decision when there is a felony or misdemeanor conviction, but the EEOC prohibits any discrimination that is caused by a company’s employment policy. When a policy excludes an applicant who has a criminal record and this leads to discrimination against a protected group, this could lead to a discrimination case. Companies can try to defend their actions by claiming that their policy is only related to the job and is necessary for the business. Other defense strategies may focus on how serious the nature of the criminal offense was, the type of position for which the individual applied, and how much time passed since the conviction or sentence.

Cherry Hill Employment Lawyers at Sidney L. Gold & Associates, P.C., Will Fight to Protect Your Rights

If you believe that you have been discriminated against by a prospective or current employer, do not hesitate to reach out to the skilled Cherry Hill employment lawyers at Sidney L. Gold & Associates, P.C. Our experienced team fights against discriminatory employment practices, and we also offer free initial consultations. Call us today at 215-569-1999 or contact us online for a free consultation. Located in Pennsauken, New Jersey, and Philadelphia, we serve clients in Cherry Hill, Haddonfield, Marlton, Moorestown, Mount Laurel, New Jersey, and South Jersey.