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Know Your Rights! How Employers Can And CAN NOT Use Your History Against You

If you pay any attention to national news, all you hear is: no jobs, economy bad, market struggling, jobs hard to find, double dip recession, down market, and did we mention no jobs? As an out of work labor force grows increasingly desperate, companies are being flooded with resumes and, therefore; hiring managers have the luxury of being quite choosy.

In order to thin the alarmingly huge herd of applicants, many companies are requiring prospective employees to submit to a criminal background check. These kinds of checks scour a person’s past and inform your future employer of any criminal activity associated with you, even stuff you’ve only been accused of can show up! It is important to understand what your individual rights are, so you don’t get unlawfully eliminated from your dream job.

What is and is NOT Legal
Even if you are one of the few Americans with a record clean enough to eat off of, chances are, you will still have to get a background check. If you plan on working in any kind of government job, expect to take one. Criminal checks for government positions are usually more extensive and involve livescan fingerprinting (which the applicant has to foot the bill for), so expect everything to come up. Other jobs in which you work with children, or the elderly will also ask their candidates to get checked out. Expect for them to look up your social media profiles as well, so watch how vulgar you get with your status updates while job hunting.

The specifics of the report will vary based on where you live, and the job you are applying for. Don’t worry though, there are some things from your past which won’t be visible in a criminal check. You can still maintain your innocent facade if any of these apply to you:

  • Bankruptcy that occurred more than 10 years ago
  • Civil suits and tax liens also vanish after 7 years
  • Anything from years prior that did not result in a criminal conviction

Basically if you had sketchy financial issues, but they happened a long time ago, you don’t need to worry. However, notice on the last bullet point that anything negative from years prior will not show up. This means that if you were arrested last week but were found innocent, that arrest will still show up on a criminal check. Bummer.

Along Came The Equal Employment Opportunity Commission (EEOC)
Slightly sketchy job seekers can rejoice. The EEOC recently revised their stance on criminal checks so that it was a little more clear about what was acceptable and what was not. They wanted to make sure that an employer knows that they cannot simply deny someone a position that has a criminal background. The conviction has to cause a threat to the company that is consistent with the specific details of the job. OK, so those guidelines are somewhat subjective but at least it’s a step towards transparency when it comes to the role of background checks in the hiring process. The two big things that came out of the recent EEOC decision are: 1) Employers must know the difference between a conviction and arrest. You are innocent until proven guilty. Hello, this is America! 2) Employers CAN NOT disqualify someone just because he or she has a record.

What these two facts mean to you: If you were arrested for something that did not lead to a conviction but were you denied a position based on the results of a background check, that is illegal. AND even if you were convicted, unless the nature of your crime directly corresponds to the job duties (like a delivery driver having a DUI) you can’t be turned away. If you are, that is also illegal.

What Does This Mean?
If you don’t have a record and aren’t looking for a job, then this does not affect you at all. You are now free to go about your day. But, if you are like millions of other Americans with a less than perfect past, this could mean being able to earn an honest living by actually getting hired.

The decision by the EEOC will also help combat racial profiling. Since white, wealthy folks generally fare better in the criminal justice system, African Americans and Latinos have a higher arrest and conviction rate (this does NOT mean they commit more crimes than white people). Now that a conviction is no longer grounds for disqualification, this law could go a long way to help these communities combat record levels of unemployment. Certainly this can be seen as a step in the right direction.

If for some reason you feel that you have been wrongly denied a job then you can contact the EEOC and they will let you know what your next steps will be.

Kristen Bright is the social media consultant for Instant CheckmateInstant Checkmate is a personal criminal background check provider, and does not perform employment screening of any kind.

 

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