About the Report The Report, Part II: Review of the Re-Entry Process:

chapters and policy statements:
About the Report of the Re-Entry Council

Policy Statement 21, Recommendation C

Review employment laws that affect the employment of people based on criminal history, and eliminate those provisions that are not directly linked to improving public safety.

There are a number of laws that govern the employment of people with criminal records. Some of these laws protect people with criminal records from discrimination based on their conviction record, and others restrict employers from hiring people with certain types of convictions. Policies and legal standards for the employment of people with criminal records are created primarily by state laws. To understand the legal and policy constructs which affect people with criminal records seeking employment, jurisdictions should review the relevant statutes and regulations in their states and consider eliminating any provisions which do not clearly bear on public safety and/or a person's ability to perform the job. The New Jersey Institute for Social Justice, for example, produced an exhaustive study of the "collateral consequences" or legal and regulatory framework which affects opportunities for former prisoners seeking to reintegrate into New Jersey communities, particularly in the area of employment. The study was a preliminary step in implementing a policy principle of "eliminat[ing] the structural and legal barriers to reintegration that are unnecessary to preserve public safety." [1]  

There is no explicit federal law governing the employment of people with arrest and conviction records. However, the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination employment laws, has offered guidance that employers governed by Title VII of the Civil Rights Act [2]   must not exclude people based upon arrests that did not lead to conviction unless there is a "business justification" [3]   and must not exclude people because of criminal convictions unless there is if there is a "business necessity." [4]   People with arrest and conviction records whose civil rights are violated can sue under Title VII. [5]  

Employers may consider an applicant's conviction record and, in some cases, a person's arrest record. Generally, employers are permitted to ask job applicants if they have ever been convicted of an offense, and employers may legally consider an applicant's conviction(s) in making hiring decisions. Indeed, state law prohibits employers in certain fields from hiring people with criminal convictions. The types of jobs with such mandated background checks tend to be in the fields of childcare, education, security, nursing and home healthcare, where "vulnerable" populations are involved, though the range of restrictions has steadily grown in the last several years to include a larger number of occupations and a larger category of crimes. If an applicant fails to disclose such information or misrepresents the information, and the employer discovers the deception, the individual can be legally fired.

States should prohibit both public and private employers and occupational licensing agencies from inquiring about or using any type of arrest record or charge that did not lead to conviction as a basis to deny access to a job, promote, discharge, or make other employment-related decisions. Because an arrest has never been vetted through a judicial process, it is simply not a sufficiently reliable basis for precluding a person's employment. A number of states prohibit pre-employment inquiries and consideration of arrest information through their state's human rights or anti-discrimination employment statutes. For example, New York does not allow employers to ask about any arrest or criminal accusation that was terminated in the applicant's favor. [6]   Rhode Island forbids any employment application questions pertaining to whether the applicant has ever been arrested or charged with a crime. [7]  

Increasingly, criminal records are available on the Internet for employers, landlords, and anyone else who may want to learn about a person's criminal record. While it may not seem troubling to make this information readily accessible to the general public, problems arise when people who are untrained to review rap sheets can see them and use the information to make employment decisions. Moreover, because many criminal records contain arrests that did not lead to conviction or errors such as missing disposition information, the material could be misinterpreted. This type of information should be available only to those with a legitimate need for it and those who are qualified to read and interpret it, such as criminal justice agencies and employers in sensitive occupations like childcare facilities. Given the possibility of misuse by employers, landlords, and others, state agencies should not make conviction information publicly accessible on the Internet.

 

  1. Nancy L. Fishman, Briefing Paper: Legal Barriers to Prisoner Reentry in New Jersey (Newark, N.J.: New Jersey Institute for Social Justice, 2003). back
  2. Title VII covers all private employers, state and local governments, and education institutions that employ 15 or more individuals. It also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training. 42 U.S.C. § 2000e-4. back
  3. A "business justification" must show that the applicant engaged in the conduct for which he or she was arrested, and that the conduct is both job-related and fairly recent. The EEOC guidance requires employers to give applicants a chance to explain their arrest records before they are disqualified from employment. See Equal Employment Opportunity Commission, Notice No. N-915-061, Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (September 7, 1990). back
  4. To establish "business necessity," the employer must consider: (1) the nature and gravity of the offense(s); (2) the time that has elapsed since the conviction and/or completion of the sentence, and; (3) the nature of the job held or sought. For example, business necessity exists where the applicant has a fairly recent conviction for a serious offense that is job-related. See Equal Employment Opportunity Commission, Notice No. N-915, Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964 (February 4, 1987). back
  5. The applicable law is Title VII of the Civil Rights Act of 1964 which prohibits private employers and state and local governments from discriminating in employment based upon race, color, national origin, gender, or religion. This is because such policies often have a disproportionate impact on minorities, who are arrested and convicted at a significantly higher rate than their percentage in the population. back
  6. N.Y. Exec. Law § 296(16). back
  7. R.I. Gen. Laws § 28-5-7(7). back
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