What employers can - and can't - find out about applicants

By Les Rosen, Employment Screening Resources

Violence, theft and criminal activity have become greater risks in the workplace, so more employers are performing criminal background checks in addition to asking about criminal records on job applications. In fact, employers who fail to take reasonable precautions about whom they hire can be sued if an employee with a criminal background harms someone.

Do criminal record searches, however, mean that applicants who had a brush with the law will never find a good job, or that employers are assured that they will never hire a criminal? The answer to both is no.

When private employers check criminal records, they normally do not have access to governmental criminal databases (unless the position qualifies for a fingerprint check, such as teachers or child-care workers). Private employers can check criminal records only by going to individual courthouses and looking through the records that are kept by each court. Since there are more than 10,000 courthouses in America, a nationwide criminal check is not practical.

To determine where to search, employers will examine the resume or job application. They can also review records kept by credit bureaus that list addresses associated with Social Security numbers, and they need to verify past jobs to confirm where a person has been and to make sure there are no unexplained gaps in employment. Even with these precautions, however, records can be missed.

When a company hires a service to perform the search, it is regulated by the federal Fair Credit Reporting Act. Searches can be conducted only if an applicant provides written consent. If a criminal record is found, applicants must be given an opportunity to question its accuracy and must receive a copy of their legal rights before the decision to deny the job is made final.

Because of the way public records are maintained, errors are always possible, and cases of mistaken identification have occurred. There are also legal limits on how far back court researchers can go in reporting convictions.

Despite these limitations, employers still find criminal record searches valuable. A search for criminal records discourages applicants with something to hide and limits uncertainty in the hiring process. It also shows that an employer exercised due diligence.

Even if there is a criminal record, there are legal limitations on what information can be used by an employer.

First, an employer may not ask about or consider information about arrests or detentions that did not result in convictions. Only convictions and pending cases can be considered.

Second, an employer may not consider crimes that have been sealed or expunged, or where the applicant participated in a special pretrial alternative program.

Third, there are limits concerning misdemeanors. Most employers will ask about both felonies and misdemeanors on applications, but a misdemeanor cannot be considered if probation was completed and the case dismissed, or for minor marijuana offenses more than two years old.

If a criminal conviction or pending case is located, does that necessarily mean that an applicant is eliminated? The answer again is no.

Courts have found that a policy of automatically denying employment can result in discrimination against certain groups. Instead, employers must examine whether there is a sound business reason to not hire an individual with a criminal record, taking into account the nature of the offense, whether it is job-related, when it occurred and what the person has done since.

What should applicants do if they are concerned about a criminal matter?

First, ask an attorney if the criminal record can be expunged or set aside by going back to court, or whether it is the type of offense that an employer may legally ask about or consider.

Second, applicants can seek to rebuild their resumes by finding employment with people they know, or with employers in a tight job market willing to give them an opportunity.

Finally, honesty is always the best policy. A criminal matter honestly explained during an interview may have much less of a negative impact than hiding it and having an employer discover it later. If an employer discovers an applicant was dishonest, the denial of a job could be based upon a lack of honesty, regardless of the nature of the offense.