Education, Training & Information: Hiring Persons With Criminal Records

Dr. Frank Kardasz, July 19, 2024

Employment laws and policies concerning the hiring of individuals with criminal records vary across federal, state, and local levels in the U.S. This page provides an overview of key regulations and guidelines that employers should be aware of when considering applicants with criminal histories. While many of these laws aim to reduce barriers to employment for those with records, employers must also balance safety and liability concerns.

Federal Laws and Policies

Title VII of the Civil Rights Act of 1964 - Prohibits employment discrimination based on race, color, religion, sex, and national origin. The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that blanket bans on hiring those with criminal records could have a disparate impact on protected groups[2][4].

Fair Credit Reporting Act (FCRA) - Requires employers to obtain an applicant's written consent before conducting a background check and to notify the applicant if information from the report will be used in an adverse employment decision[1][4].

Federal Bonding Program - Provides no-cost fidelity bonds for "at-risk" job seekers, including those with criminal records, to protect employers. These bonds cover theft, forgery, larceny, and embezzlement for the first six months of employment at no cost to the job applicant or the employer[1][2].

Work Opportunity Tax Credit - Offers tax incentives to employers who hire individuals from certain target groups, including ex-felons[1].

Fair Chance to Compete for Jobs Act of 2019 - Prohibits most federal agencies and contractors from requesting criminal history information from job applicants until after a conditional offer of employment[3].

State and Local Laws

California: Fair Chance Act - Prohibits employers with five or more employees from asking about conviction history before making a job offer[4][6].

New York: Article 23-A of the Correction Law - Requires employers to consider factors such as the nature of the offense and the time elapsed since the conviction[4][6].

Illinois: Employee Background Fairness Act - Prohibits employers from using a conviction record as a basis for employment decisions unless certain conditions are met[5].

Texas: Texas Labor Code Section 52.021 - Limits the use of criminal records in hiring decisions[4][6].

Massachusetts: CORI Reform Law - Limits employers' access to criminal records and requires an individualized assessment[4][6].

Minnesota: Ban the Box Law - Prohibits public and private employers from inquiring about criminal records until later in the hiring process[4][6].

Hawaii: Hawaii Revised Statutes Section 378-2.5 - Restricts employers from inquiring about criminal history until after a conditional job offer[4][6].

Washington: Washington Fair Chance Act - Prohibits employers from asking about arrests or convictions before an applicant is determined qualified for the position[4][6].

Georgia: Georgia Fair Employment Practices Act - Limits the use of criminal records in hiring for public employment[4][6].

Pennsylvania: Criminal History Record Information Act - Restricts the use of criminal records in employment decisions and requires an individualized assessment[4][6].

Occupation-Specific Restrictions

Certain occupations have specific restrictions that may prevent individuals with certain convictions from being hired. These include:

Medical professionals (e.g., doctors, nurses)
Financial industry roles (e.g., financial analysts, accountants)
Emergency responders (e.g., police officers, firefighters)
Transportation roles (e.g., airline pilots, train conductors)
Security positions (e.g., security guards)
Education roles (e.g., teachers, school administrators)[1][2][4].

How a Prospective Employer Can Lawfully Learn About the Criminal History of a Job Applicant

Employers must follow specific legal procedures to lawfully learn about an applicant's criminal history:

Obtain Written Consent: Employers must get written permission from the applicant before conducting a background check[1][4].

Ban the Box Laws: Many states and localities have laws that prohibit employers from asking about criminal history on initial job applications. Employers must wait until later in the hiring process to inquire about criminal records[1][4].

Individualized Assessment: Employers should conduct an individualized assessment to determine if the criminal record is relevant to the job duties. Factors to consider include the nature of the offense, the time elapsed, and evidence of rehabilitation[1][2][4].

Provide Notice: If adverse action is taken based on the criminal history, the employer must provide the applicant with a copy of the report and a summary of their rights under the Fair Credit Reporting Act[1][4].

In conclusion, the landscape of laws and regulations regarding the hiring of individuals with criminal records is complex and evolving. Employers must navigate federal protections against discrimination, state and local ban-the-box laws, and industry-specific restrictions. While these laws aim to increase employment opportunities for those with records, employers must also consider workplace safety and liability. Staying informed about applicable laws and adopting fair hiring practices can help employers make sound decisions while promoting second chances for qualified applicants.

References

Equal Employment Opportunity Commission. (n.d.). Enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. Retrieved from https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions

Illinois Department of Labor. (n.d.). Job Opportunities for Qualified Applicants Act (Ban the Box). Retrieved from https://labor.illinois.gov/laws-rules/fls/job-opportunities-for-qualified-applicants-act.html

National Employment Law Project. (2021). Ban the Box: U.S. cities, counties, and states adopt fair hiring policies. Retrieved from https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/

Collateral Consequences Resource Center. (n.d.). Limits on use of criminal record in employment, licensing & housing. Retrieved from https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/

MVSK Law. (n.d.). Jobs You Can't Get If You Have a Criminal Record. Retrieved from https://www.mvsklaw.com/jobs-you-cant-get-if-you-have-a-criminal-record/

Consumer Financial Protection Bureau. (n.d.). Employer background checks and your rights. Retrieved from https://consumer.ftc.gov/articles/employer-background-checks-your-rights