The Wall Street Journal ran an article today titled More Job Seekers Scramble To Erase Their Criminal Past discussing how job seekers are seeking to legally delete their criminal records for minor offenses.
Though written from the job seeker’s point of view, the article does a fair job of highlighting the increasing flexibility by legislatures and courts to erase or limit the use by employers of “minor” criminal offenses. There was, however, one significant error by the author related to the legal use of criminal records.
As a background screening firm, we typically only become aware of expunged or sealed records when they appear in the so-called “national” criminal records databases and we are unable to verify them with the court. Expunged records legally no longer exist and employers should not even be aware of them, much less use them when evaluating someone for employment. Otherwise they risk litigation from the aggrieved employment applicant, as one local bank found out recently. (This is a key reason why we always verify any criminal records from a database before we report them to our clients.)
For folks who get in minor legal scrapes and have met the court’s requirements, expunction or non-disclosure orders make sense. And certainly the wrongly accused should have a means of erasing their history with the criminal justice system. Some states, however, seem to be tipping the scales in favor of offenders rather than allowing employers to make reasonable and educated hiring decisions.
There was one significant error in the article of which readers should be aware. The article claimed:
Companies can make hiring decisions based on conviction records, but not on arrests that haven’t resulted in convictions, according to the U.S. Equal Employment Opportunity Commission.
That’s not accurate. First of all, the EEOC’s protections are for individuals in protected classes and don’t generally apply to white individuals.
Even where individuals are in a protected class, the EEOC has specific guidelines allowing for the use of non-conviction records. Basically, before making an adverse employment decision based upon non-conviction criminal records the employer must ensure that:
- The alleged conduct is related to the position sought including review of the nature and gravity of the offense, the time that has passed since the arrest, and the nature of the position sought and
- There is a likelihood that the individual engaged in the conduct alleged.
However, there are other instances where cases are dismissed or not prosecuted but still may be of legitimate interest to an employer. For instance, if an individual has been accused of domestic violence on multiple occasions but each charge was dismissed “at the request of the complaining witness,” an employer considering the individual for a care-giving role with vulnerable populations would be wise to review those circumstances more closely before hiring the individual.
Employers should be aware that California and some other state’s laws go beyond the EEOC’s guidelines in restricting the use of non-conviction information. Additionally, the federal Fair Credit Reporting Act limits the reporting of non-conviction information by background screening companies to seven years after the arrest or final dismissal.