Overview
This topic covers federal, state, and local pre-employment inquiry restrictions and limitations on an employer's use of an applicant’s or employee’s criminal history information, including "ban-the-box" laws that prohibit an employer from requesting a prospective employee's criminal history information on a job application or prior to a specified point in the hiring process. Employers must comply with federal and applicable state and local law relating to criminal background checks.
Questions Answered
- What employers are covered by the law restricting criminal background checks?
- Are both applicants and employees covered by the law restricting criminal background checks?
- When can an employer request criminal background information about an applicant or employee?
- What are the restrictions on the type of criminal background information an employer can request?
- Can a job application include a request for information about the applicant’s criminal history?
- What can a job advertisement say about the criminal history of an applicant?
- What are the limitations on the use of sealed or expunged records?
- Are there exceptions to the restrictions on criminal background checks?
- Does the law specify any procedures for basing an employment decision on information obtained through a criminal background check?
- What notice must an employer provide to applicants and employees about their rights under the law restricting criminal background checks?
- Are there records that the employer must keep regarding criminal background checks?
What agency enforces the law restricting criminal background checks?
Additional Information
Federal law impacts a private employer's screening practices based on arrest or conviction records to the extent that these practices are alleged to be discriminatory under Title VII of the Civil Rights Act of 1964. While Title VII does not expressly address the use of criminal history in employment screening, the federal Equal Employment Opportunity Commission (EEOC) has issued enforcement guidance pursuant to its authority under Title VII entitled "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq."
This topic does not cover:
- Requirements of the Federal Fair Credit Reporting Act and similar state laws. The FCRA does not restrict conviction reporting per se but impacts the reporting and consideration of criminal history information in other important ways. The fair credit reporting statutes in some states limit the scope and flow of information that consumer reporting agencies (background check companies) can report to employers, including conviction records. Employers should familiarize themselves with these restrictions and limitations.
- All local laws. While the report includes local laws, it focuses primarily on locations with a population of at least 100,000 people. However, it is possible a local law may not be included here because the jurisdiction does not publish its code of ordinances online or does not report newly enacted ordinances immediately.
- Laws applicable only to public employers.
- State criminal record repository statutes, unless (1) they contain provisions expressly directed at an employer's right of access to records in connection with a criminal background check and (2) are not industry specific. State criminal record repositories are databases of criminal records maintained by the state police, state bureau of investigation, state court system, or other similar public agency. These statutes are important with respect to the subject of negligent hiring liability.
- Industry-specific requirements, e.g., laws that cover only employers within a certain industry such as health care facilities, schools and child care facilities, or the financial industry.
- Expungement and sealing procedures applicable to crimes covered by "first offender" and other minor misdemeanor laws.