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When Can Employers Investigate Your Criminal Record?

 

Employers have become increasingly concerned about hiring workers who have criminal records. This is because they have a legal duty to be very careful in the hiring process. That duty may be violated if an employer hires someone considered to be dangerous or unfit. Because of the fear of being held responsible for their employees’ actions, many employers conduct criminal background checks.

If you are applying for a job, it is important to get a copy of your criminal record to know what information it contains and what you can do so that your criminal record will not prevent you from getting a job.

What questions may employers ask about my criminal record?

There is no New Jersey law preventing employers from asking about a job applicant’s history of convictions and arrests, including arrests that did not lead to conviction.

How do employers get a copy of my criminal history?

An employer can get information about you by doing a search on the Internet, searching for your name in court or government records, or asking you to be fingerprinted for a background check to be conducted by the New Jersey State Police or the Federal Bureau of Investigation (FBI).

Many employers hire a consumer reporting agency to conduct the background check. To do this, the employer must get your authorization in writing before starting the investigation process. When conducting your background check, the consumer reporting agencies must follow the rules outlined by the Fair Credit Reporting Act (FCRA). The FCRA is a federal law that provides protections for consumers who are the subject of background checks.

Do I have a right to see my criminal background check?

The FCRA protects consumers only when consumer reporting agencies are used. Under the FCRA, if you are denied employment because of your background check, you must be given a copy of your report along with a denial notice. If the employer did not use a consumer reporting agency, the FCRA does not apply and you do not have right to a copy of your report. In fact, depending upon the method of investigation used by the employer, there may not be an actual report available.

Under the FCRA, before an employer uses the information from the consumer reporting agency to deny you employment, terminate your employment, withdraw a job offer, or deny a promotion, the employer must give you a copy of the report.

The FCRA also requires the employer to provide the following:

  • The name, address, and telephone number of the consumer reporting agency that furnished the consumer report;
  • A statement that the employer, not the agency, made the adverse decision; and
  • A notice that you have the right to dispute the accuracy or completeness of any of the information in the report.

If the employer refuses to provide you with a copy of the report, you can request a copy directly from the consumer reporting agency.

What can I do if the background check from the screening agency contains incorrect information?

If the background check contains inaccurate information, you should file a dispute with the consumer reporting agency that prepared the report. The agency has 30 days to investigate the dispute. Written notice of the results should be sent to you no later than five business days after the investigation is completed.

There are many different consumer reporting agencies, and fixing the inaccuracy with one agency will not necessarily prevent another agency from finding the same inaccurate information the next time. To correct the error, you need to go to the source of the inaccuracy whenever possible. To find the source of the error, ask the consumer reporting agency to tell you where they received their information. Contact that source directly to ask about the steps you must take to correct the error.

If I have a criminal record, how do I answer questions about it?

If you have a criminal record, and you are asked a question about it, you must be truthful. Giving an honest explanation during an interview is better than hiding your record and having an employer discover it later. If an employer discovers that you were dishonest, the denial of a job could be based upon a lack of honesty, not your criminal record.

Are there any protections for a person with a criminal record?

There are no New Jersey or federal laws that specifically protect people with criminal records from employment discrimination. (Some states, such as New York, do have such laws.) However, federal law, while not explicitly protecting people from employment discrimination based on arrest or criminal convictions, offers some protections.

The Equal Employment Opportunity Commission (EEOC), a federal agency, has taken the position that employers who, by policy or practice, automatically exclude people from employment on the basis of an arrest or criminal record are in violation of Title VII of the Civil Rights Act of 1964. Denying employment on the basis of an arrest or conviction record has an adverse impact on Blacks and Hispanics, because they are convicted in greater numbers than Whites and other nationalities.

The EEOC has developed guidelines that employers must follow when denying a job to an applicant because of his or her criminal background.

Can an employer refuse to hire me if I have an arrest record?

Employers cannot use arrest records to exclude people from employment. Arrests alone are not considered reliable evidence that a person has actually committed a crime. An employer who disqualifies you based on your arrest record must give you an opportunity to explain the circumstances surrounding the arrest. Also, the employer must consider whether (1) the arrest relates to conduct that is unsuitable for the job; (2) you actually engaged in the conduct for which you were arrested; and (3) the conduct is relatively recent.

To what extent will a conviction record be used in making employment decisions?

If the employer discovers that you have a criminal history, the employer may not deny you employment because of your criminal history unless the employer conducts some type of investigation in order to gather more information. The employer must consider (1) the nature and gravity of the offense or offenses; (2) how much time has passed since your offense and/or the completion of the sentence; and (3) the nature of the job for which you are applying.

After considering these factors, if the employer still feels that your criminal background makes you an unacceptable applicant, he or she may deny you the position.

If the employer does not investigate your background, or if you disagree with the employer’s decision, and less than 300 days have passed since you were denied the position, you can ask the EEOC to decide if the employer had a good reason to deny you the job.

Where can I get more information?

For more information, contact the Prisoner Reentry Project at Legal Services of New Jersey by calling LSNJ-LAW™, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529). (Outside of New Jersey, please call 732-572-9100 and ask to be transferred to the hotline.) You can also write to:

Legal Services of New Jersey
Prisoner Reentry Project
P.O. Box 1357
Edison, New Jersey 08818-1357

This article is from the July-August 2011 issue of Looking Out for Your Legal Rights®.

 

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Low-income New Jerseyans can get free legal help by phone: call our toll-free hotline at 1-888-LSNJ-LAW (1-888-576-5529), Monday through Friday, 8:00 a.m. to 5:30 p.m. Outside of New Jersey, please call 732-572-9100 and ask to be transferred to the hotline.