Criminal History Discrimination

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Criminal History Discrimination in the Workplace

Many States Prohibit Employers from Asking Job Applicants About Their Criminal History Before an Interview

Criminal histories in employment can be a tricky hurdle to overcome. You don’t want to hide any details from your employer. However, you also do not want to be judged because of a past mistake.

Many states have issued laws to help prevent pre-judging an employment applicant based on a potential arrest or criminal conviction. These laws prohibit employers from asking if you have ever been arrested or convicted of a crime before an interview. In some states, an employer cannot ask these questions until an employer makes a conditional offer of employment.

If you are the victim of criminal history discrimination in the workplace, you deserve to stand up for your rights. You need an attorney who understands the law and believes in justice. You deserve a discrimination lawyer who will fight with you for your right to work in all situations. The discrimination lawyers at the Derek Smith Law Group can help ensure you have a right to work, despite your criminal history.

What Is Discrimination Based on Criminal History?

Your criminal history is a record of your arrests, acquittals, and convictions. Employers have often used these records to deny a job applicant an interview. They also get used as an excuse to fire employees. Employers may claim the arrest shows an employee violated company policies.

Using criminal history records to eliminate candidates from employment positions has led to discrimination based on race and national origin. The elimination targeted people of a certain race or ethnicity as a matter of circumstance.

As a result, many states enacted laws to eliminate criminal history information as part of the hiring process. These laws are known as “ban the box” laws. Employers cannot ask about arrests or convictions during the application process. In some states, they are prohibited prior to being given a conditional offer of employment.

What Federal Laws Protect Against Criminal History Discrimination?

The Fair Credit Reporting Act (FCRA) requires employers to follow specific guidelines when using a third party to conduct an employment background check. One such guideline addresses when a negative criminal history record surfaces. Before an employer can make an employment decision, the employer must:

  • Notify the job applicant in writing that the background check found a negative criminal record.
  • Offer the applicant an opportunity to review the finding.
  • Allow the applicant to refute the finding and show evidence it is incorrect.

The FCRA also prohibits employers from using arrests without convictions that occurred over seven years ago. It also prohibits employers from using expunged or sealed records in any part of the hiring process.

These guidelines help to eliminate using incorrect criminal history records for employment decisions.

The EEOC set guidelines regarding the use of criminal histories because using them in hiring and employment decisions may violate Title VII of the Civil Rights Act. As a result, employers cannot create a blanket criminal history record policy. A blanket policy of denying employment and firing any employee with a criminal history, such as an arrest or conviction, may unfairly target African American and Hispanic employees.  Therefore, these guidelines help to limit the use of criminal records to discriminate against employees within a protected class.

The EEOC recommends employers review each arrest and conviction individually. Furthermore, they recommend employers show they took the following considerations:

  • How serious was the offense?
  • What was the nature of the offense?
  • When was the offense committed?
  • Did you serve a jail sentence? If so, when did you get released from prison?
  • What are the job duties? Does the prior conviction conflict with the job duties?

To learn more about your rights regarding criminal histories under federal laws, contact a discrimination lawyer to discuss your concerns.

Does Each State Have Laws to Protect Job Applicants from Criminal History Discrimination?

Many states have adopted laws prohibiting employers from using criminal histories to eliminate potential employees.

The Fair Chance Act is an addition to the New York City Human Rights Law. Under the Fair Chance Act, an employer cannot use criminal history in any employment decision. Employment decisions include:

  • Hiring
  • Promotions
  • Raises
  • Transfers
  • Firing

The Fair Chance Act does not allow employers to ask about criminal histories until a conditional employment offer is made. Once the employer makes an offer of conditional employment, they can conduct a criminal history background check.

New York State’s Article 23-A states that employers are encouraged to employ people with criminal records. However, if they are using criminal histories in the employment decision, they must consider the following before withdrawing an offer of conditional employment based on criminal history:

  • What are the job obligations for the position?
  • Does the record affect the applicant’s ability to meet job function requirements?
  • How long has it been since the conviction?
  • What was the applicant’s age at the time of the illegal activity?
  • What was the severity of the crime?
  • Did the employee or job applicant receive rehabilitation and good conduct records?
  • Will hiring or keeping the employee put the other staff members in jeopardy?

The “ban the box” laws in New Jersey and Miami prohibit employers from asking about criminal records on a job application or prior to the first interview with a job applicant. Once an employer conducts the first interview, they may ask about criminal records prior to offering a second interview.

The “ban the box” law in Philadelphia prohibits employers from asking about your criminal history until after a conditional offer of employment is made. If a record is surfaced in the background check, the employer must consider:

  • The type of crime
  • The time passed since the crime occurred.
  • The crime in relation to the job responsibilities
  • Job history, character references, and rehabilitation

If the employer withdraws a job offer, you must receive a written explanation along with a copy of the background report.

The California “ban the box” law prohibits employers with five or more employees from asking about criminal histories before a conditional offer of employment is made. In addition, employers cannot consider arrests that did not lead to convictions or any expunged or sealed criminal records. After the offer is made, an employer can conduct a criminal history screening. If a criminal history is found, the employer must consider:

  • The type of crime
  • The time passed since the crime occurred.
  • Is the crime connected to your job responsibilities?
  • Job history, character references, and rehabilitation

A qualified discrimination attorney can help you decipher your state laws and whether your company’s actions violated these rights.

What Are My Rights as a Victim of Criminal History Discrimination?

If you have been denied any advancement at work based on a violation of criminal history discrimination laws, you may file a claim in your state. Typically, the time limit to file a complaint is one year.

However, if you feel your criminal history led to discrimination related to your race or nationality, you have a right to file a claim with the EEOC. The EEOC provides a statute of limitations of 180 to 300 days to file the claim. The time limit to file your claim depends on where you live or work.

Working with a qualified discrimination attorney in your state can help ensure you file your claim with the proper agency within the time limit provides by law.

What Remedies Are Available to Victims of Criminal History Discrimination?

Maybe your criminal history led to an unjust firing. Maybe your employer retaliated against you when you requested a copy of the surfaced criminal record. The laws protect people from wrongful termination, retaliation, and any other adverse employment actions relating to a criminal record.

The courts may offer relief to employees and job applicants experiencing such treatment due to criminal history. Some of these remedies may include future and back wages, payment for emotional distress and pain and suffering, and changes to company policies.

Working with a qualified discrimination lawyer can help you request remedies from the court that fit the “crime” and help you recover from the entire ordeal.

How Can an Attorney Help You Fight Back Against Criminal History Discrimination?

The laws protecting your right to work when you have a criminal history vary. Some laws protect your rights against your employer using any criminal records from impacting their decision until they have at least interviewed you once. Others require employers to ignore criminal histories until a conditional offer of employment gets made.

Still, other laws worry about your rights as an employee. They insist your employer considered the effect of an arrest or conviction on the workplace and your job duties.

The laws are extensive. A qualified discrimination lawyer can help you sort through the laws to understand the ones best suited for your case. They can help ensure you file your complaint with the proper agency or court and meet any deadlines set forth by the court or law.

Your employer will argue that your criminal history affects the workplace. They will attempt to show they were justified in their actions. You need an attorney to help advocate for your rights and demonstrate that the law did not justify your employer’s negative actions.

Contact the Derek Smith Law Group for Your Free Consultation!

Your criminal record should never prevent you from working. People make mistakes. As long as they acknowledge those mistakes, learn from them, and serve their time, they should have the same rights to work as a person without these mistakes in their past.

If you believe your rights have been violated under criminal history in employment laws, the Derek Smith Law Group’s experienced employment attorneys can help.

Do You Have a Criminal Record Keeping You from Finding Work or Keeping a Job? Do You Have Questions About Your Right to Work with a Criminal Record? Please Call 800.807.2209 Or Email Derek@Dereksmithlaw.Com To Learn About Your Rights.

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