You learn from a friend that your proverbial “dream job” is available and it is with a prestigious company known for offering generous benefits and a strong starting salary. You are elated to hear this news and want to submit a cover letter and resume that moment. However, this euphoria is quickly tempered by that voice in your mind reminding you of a past misdemeanor conviction on your record.
If you are one of the tens of thousands of Americans who have been arrested with minor charges in the past, you are probably wondering whether a misdemeanor conviction for drug possession, a DUI, etc. can impact your viability when pursuing a new job.
Past Criminal Convictions Can Negatively Impact Your Ability to Secure that Dream Job
Though misdemeanor convictions are not as serious as felony convictions, the mere existence of a past criminal record can negatively impact your job search. Potential employers possess a legal right to ask you about your criminal record and can access criminal history reports for job applicants. These reports can reveal a past misdemeanor arrest or conviction, whether you voluntarily reveal the conviction or not.
You are Not Alone
Before jumping into the legal issues surrounding past convictions, it is important to note the fact that you are not alone. Unfortunately, many people with past criminal records feel embarrassed, isolated, and as if they are the only job applicants worrying about this issue. In reality, many people are in the exact same boat. According to the National Institute of Justice, approximately one-third of all Americans under the age of 23 have been placed under arrest during their formative years. Many of these individuals have misdemeanor convictions on their criminal records. These records can be damaging to their employment prospects, but they don't have to be.
Understanding Your Legal Rights
Just because you have a misdemeanor conviction on your record does not mean you give up your legal rights when it comes to pursuing and securing gainful employment. First and foremost, you are NOT required to disclose past arrests that did not lead to convictions. This means if you were placed under arrest, but later exonerated of the charges, or the charges were dropped, you are under no legal obligation to mention this to your prospective employer. In addition, if your past misdemeanor conviction was expunged (i.e. removed) from your record then you are under no legal obligation to mention the conviction to your potential new employer.
In addition, there are federal laws and many state laws in place that limit how employers can utilize past criminal records when making their hiring decisions. Let’s take a look at both federal and state laws.
Federal Law – The Fair Credit Reporting Act
The Fair Credit Reporting Act (“FCRA”) requires employers who request a criminal background check to take the following steps:
- Obtain your written consent prior to making this request to investigate your criminal background;
- Notify you if the employer intends to screen you out due to a criminal background check; and
- Notify you after the employer decides not to consider you based on the results of a criminal background check.
In addition, the companies that are responsible for gathering and providing background checks must ensure that the information collected on individuals is both timely and accurate. If a job applicant disputes the collected information, those companies are obligated to investigate and report any errors.
Federal Law – Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment, as in hiring screening practices. This federal law prohibits practices that disproportionately screen out individuals due to their ethnicity, race or another “protected class.” Since public data supports the fact that arrest rates are higher for certain groups of individuals (e.g., Latinos and African Americans), an employer with a blanket policy of excluding applicants with a past criminal record could be committing a form of racial discrimination.
However, the Equal Employment Opportunity Commission (EEOC) provided employers with a glaring loophole that allows them to essentially circumvent Title VII. This loophole enables employers to screen out applicants who could be “dangerous or pose safety risks” as long as this screening does not involve racial discrimination.
State Laws Enacted to Help Employees with Past Criminal Records
Many states have passed laws to help protect job seekers who have criminal records. For example, some states restrict employers from even asking job applicants about their arrest records or records that have been sealed or expunged. Other states passed laws limiting how employers can use an applicant’s criminal record in making hiring decisions.
In Nevada, an employer can only get an applicant’s criminal record if the applicant provides consent. Even if consent is provided, the record will include only convictions and incidents for which the applicant is “currently within the criminal justice system, including parole or probation.” Furthermore, past arrest records are not accessible by employers. Unfortunately, Nevada does not allow a job seeker to expunge their past criminal record, but there is a law in place that allows an individual to have their past criminal record sealed.
Be Proactive in Protecting Your Past Criminal Record
As you can see, having a past criminal record can complicate a new job search, but do not give up hope. If your conviction was years ago and you have been a model citizen since the conviction, consider speaking to an attorney about the possibility of having your criminal record sealed. You also need to remember that if you were simply arrested and not convicted, this is not relevant or required information to share with a prospective employer.
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