There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.
Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.
Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when
- considering the nature of the job,
- the nature and seriousness of the offense,
- and the length of time since it occurred.
This is also true for a conviction.
Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer’s use of conviction data in making an employment decision.
In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.
The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant’s written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.
Certain other disclosures are required upon the employee’s request and prior to taking any adverse action based on the reports obtained.
Minnesota Expands “Ban the Box” to Private Employers In May, Governor Mark Dayton signed a criminal background check bill offering job candidates with an arrest or conviction more opportunities to be evaluated on their skills and experience when applying for positions with private employers starting January, 2014. The new law requires private employers to wait until a job applicant has been selected for an interview or a conditional offer of employment has been extended before asking the applicant about their criminal record or conducting a criminal background record check. The elimination of the question with a check box asking about criminal background on initial job applications have been commonly referred to as “Ban the Box.” “Ban the Box” has applied to public employers in Minnesota since 2009. Nationally, there are 92 million Americans with either an arrest or conviction on their record. This law offers the vast majority of individuals with a non-violent criminal record a second chance at an opportunity for employment to better their lives. Employers may still exclude applicants if required by law not to consider candidates who have been convicted of a crime, thus, existing laws will continue to protect vulnerable adults and children from people with violent or sexual criminal histories. Additionally, employers may still exclude applicants if a crime is relevant to the position’s job duties. The new law outlines potential penalties for employers found in violation of the law. If the Human Rights Commissioner finds that a violation has occurred, the Commissioner may impose penalties.