Discrimination based on criminal background

However, employers must never inquire about or act on non-conviction information, however or ACDs that have not been revoked.

To guard against soliciting or considering non-conviction information, employers may frame inquiries by using the following language after a conditional offer is made: Have you ever been convicted of a misdemeanor or felony? If an employer hires an applicant after learning about her or his conviction history, the FCA does not require it to do anything more. An employer that wants to withdraw its conditional offer of employment, however, must first consider the Article A factors. If, after doing so, an employer still wants to withdraw its conditional offer, it must follow the Fair Chance Process.

Pre-Employment Inquiries and Arrest & Conviction

An employer cannot simply presume a direct relationship or unreasonable risk exists because the applicant has a conviction history. If a direct relationship exists, an employer must evaluate the Article A factors to determine whether the concerns presented by the relationship have been mitigated. Employers must also consider a certificate of relief from disabilities or a certificate of good conduct, which shall create a presumption of rehabilitation regarding the relevant conviction. The Fair Chance Process If, after evaluating the applicant according to Article A, an employer wishes to decline employment because a direct relationship or unreasonable risk exists, it must follow the Fair Chance Process: 1.

Share with the applicant a written copy of its Article A analysis; and 3. Disclosing the Inquiry The Commission requires an employer to disclose a complete and accurate copy of every piece of information it relied on to determine that an applicant has a criminal record, along with the date and time the employer accessed the information.

The applicant must be able to see and challenge the same criminal history information relied on by the employer. Employers who rely on criminal record information beyond what is contained in a criminal background report must also give that information to the applicant. Employers who search the Internet to obtain criminal histories must print out the pages they relied on, and such printouts must identify their source so that the applicant can verify them.

Employers who check public records must provide copies of those records. Employers who rely on oral information must identify the interlocutor and provide a written summary of their conversation. The summary must contain the same information the employer relied on in reaching its determination. Oral information includes anything the applicant revealed about her or his criminal record.

Sharing the Fair Chance Notice The FCA directs the Commission to determine the manner in which employers inform applicants under Article A and provide a written copy of that analysis to applicants. The Notice requires employers to evaluate each Article A factor and choose which exception — direct relationship or unreasonable risk — the employer relies on. The Notice also contains space for the employer to articulate its conclusion. Finally, the Notice informs the applicant of her or his time to respond and requests evidence of rehabilitation and good conduct.

Federal Protections for Applicants With a Criminal Record

The Notice provides examples of such information. Employers may identify specific examples of rehabilitation and good conduct that would be most relevant to the prospective position, but examples must be included.

Using Criminal History in Tenant Screening

This time period begins running when an applicant receives both the inquiry and Notice. Employers may therefore wish to confirm receipt, either by disclosing the information in person, electronically, or by registered mail. Such method of communication must be mutually agreed on in advance by the applicant and employer.

Difference Between Arrest Records and Conviction Records

The process allows an applicant to respond either orally or in writing and provide additional information relevant to any of the Article A factors. If, after communicating with an applicant, the employer decides not to hire her or him, it must relay that decision to the applicant. Handling Errors in the Background Check An error on a background check might occur because, for example, it contains information that pertains to another person or is outdated.

If an applicant is able to demonstrate an error on the background report, the employer must conduct the Article A analysis based on the corrected conviction history information to ensure its decision is not tainted by the previous error. The FCA applies the same way to temporary help firms as it does to any other employer. To evaluate the job duties, a temporary help firm may only consider the basic skills necessary to be placed in its applicant pool.

Employers may assert the application of an exemption to defend against liability, and they have the burden of proving the exemption by a preponderance of the evidence. Jennings and Ericka A. Farmer and Samantha J. Morgan and Hannah R. Levinson and David R. Bergeson and Carla N. Waldon and Joshua M.

Beck and Sean O'D. Milewski When is a Deal a Deal? Caton and Elizabeth K. Giger and Sean P. Ng and Jason A. Mudigere and Andrew R. Maples and Anna H. Stein and Shira M.


Employment discrimination against persons with criminal records in the United States

Hemme and Sara V. DeBlaze and Ryan M. Durham and Arleen A. Mitchell and Leslie A. Stout-Tabackman Proposed D.

Travelers by: Sara B. Stephen Hahn as FDA Drenzek and Hena M. Bertoncini and Y. Aryama and Michael P. Such convictions cannot be an automatic bar to authority to practice in the regulated field, though. Rights of employees and applicants: Upon request, applicant must be given, within 30 days, a written statement of the reasons why employment was denied. Rules for employers: May obtain records of convictions or of criminal charges adults only occurring in the past three years, provided the information has not been purged or sealed.

Rules for employers: May not inquire into any sealed convictions or sealed bail forfeitures, unless question has a direct and substantial relation to job. Rights of employees and applicants: May not be asked about arrest records that are sealed; may respond to inquiry as though arrest did not occur.

Rules for employers: May not inquire into any criminal record that has been expunged. Rights of employees and applicants: If record is expunged, may state that no criminal action ever occurred. May not be denied employment solely for refusing to disclose sealed criminal record information.

Employment Discrimination Based on Criminal Records

Rules for employers: Before requesting information, employer must notify employee or applicant; when submitting request, must tell State Police Department when and how person was notified. May not discriminate against an applicant or current employee on the basis of an expunged juvenile record unless there is a "bona fide occupational qualification.

Rights of employees and applicants: Before State Police Department releases any criminal record information, it must notify employee or applicant and provide a copy of all information that will be sent to employer. Notice must include protections under federal civil rights law and the procedure for challenging information in the record. Record may not be released until 14 days after notice is sent. Rules for employers: May consider felony and misdemeanor convictions only if they directly relate to person's suitability for the job.

Rights of employees and applicants: Must be informed in writing if refusal to hire is based on criminal record information. Agency guidelines for preemployment inquiries: Pennsylvania Human Relations Commission. Rights of employees and applicants: Do not have to disclose any conviction that has been expunged. Agency guidelines for preemployment inquiries: South Dakota Division of Human Rights, "Preemployment Inquiry Guide" suggests that an employer shouldn't ask or check into arrests or convictions if they are not substantially related to the job.

Rules for employers: Only employers who provide care for children, the elderly, and the disabled or who run postsecondary schools with residential facilities may obtain criminal record information from the state Criminal Information Center. May obtain record only after a conditional offer of employment is made and applicant has given written authorization on a signed, notarized release form. Rights of employees and applicants: Release form must advise applicant of right to appeal any of the findings in the record. Rules for employers: May not require an applicant to disclose information about any criminal charge that has been expunged.

Rights of employees and applicants: Need not refer to any expunged charges if asked about criminal record. Code Ann.