Employers have a right to see an individual’s criminal record before hiring them. However, that right has several key limitations. The decision not to hire someone based on his or her criminal record must be related to the job, meaning the criminal record indicated that the person could be a liability in that position. Also, in most cases, an employer may not use arrest records in hiring decisions and cannot view expunged crimes, meaning crimes that have been removed from a criminal record. Furthermore, a recent campaign known as “Ban the Box” has encouraged over 150 cities and counties 30 states, and federal employers to remove questions about criminal history from job applications, pushing background checks to later in the hiring process and after an individual is given a chance to fairly present their qualifications. To learn more about criminal records, read below:
A criminal record is documentation of a person’s criminal history compiled on local, state, and federal levels by law enforcement agencies. The record usually lists non-expunged offenses including traffic violations.
Criminal records are typically used by potential employers, lenders, and other parties to determine the extent of an individual’s criminal activity. They are also used by some regulatory agencies to determine eligibility for occupational licenses. In the case of occupational licenses, agencies check to see if an individual was convicted of an offense that that bears on fitness to be licensed in that particular occupation.
While there are many sites claiming to give you access to your criminal record, the safest and most accurate way is to request the criminal record from the jurisdiction in which you were convicted. The process for doing so varies by jurisdiction, so you must check with the police department or court in that jurisdiction for information on the process.
If the criminal record is for a federal crime then you must contact the FBI’s Criminal Justice Services Division for an Identity History Summary Check.
Yes. Most states allow employers to use criminal records when making hiring decisions. When making this type of hiring decision, the employer must show that there was “business necessity” for making the hiring decision. There must be some showing that the employer’s policy is reasonably related to the job requirements.
The Fair Credit Reporting Act is a federal law that requires employers to provide notice when accessing your credit report or criminal record. In order to access a candidate’s criminal record, the employer must ensure the report is used for a permissible purpose, and have the authorization to use the report. Before using a criminal record in a hiring decision, the employer must provide the candidate with a copy of the report and a summary of his rights.
Many employers conduct pre-employment background checks to protect themselves against lawsuits for negligent hiring. Negligent hiring occurs when the employer knew or should have known that an employee was dangerous or unfit for a particular position. If an employee harms another person while working, the employer may have to pay.
Most states have laws that ban the use of arrest history that did not lead to conviction in hiring decisions. Some states allow the use of arrest records, but an employer may not automatically exclude individuals from employment based on their arrest record. When an arrest record is used, it is only appropriate for an employer to use arrest records in a hiring decision when:
- The arrest is recent;
- It is likely the applicant committed the crime; and
- There is a relationship between the position and the reason for arrest (For example, you were arrested for theft and applying for a cashier position)
Yes, a criminal record may ban employment in certain fields. For example, in certain circumstances, a criminal records can bar a person from employment in banks. Similarly, if an individual has a felony conviction on their criminal record, they are banned from possession or use of a firearm and therefore cannot work in a position that requires them to carry a gun. Some states require employers involved in industries that engage in business with “vulnerable individuals” to conduct criminal record checks for specific convictions before hiring employees. These industries include positions that work with children and elderly adults; particularly, childcare, education and home health aid.
If there is a mistake on your criminal record such as incorrect, incomplete, or duplicate entries, you should contact your State Police Department or the Federal Bureau of Investigations (to obtain criminal records outside your particular state).
You may be able to get a criminal offense expunged from your record, or have your record sealed. Expungment is the process that clears all documented references of prior criminal convictions. Expungement is not available for all types of convictions and may also be subject to waiting periods before it is available. Check with the courts in the jurisdiction where you were convicted to get specific information about whether your convictions may be expunged. When a criminal record is sealed, the crime is no longer available to the public. Although, if a criminal record is sealed, it is still available to law enforcement, prosecutors, and other agencies who can use it against you in sentencing if you commit a new crime.
Some crimes that cannot be expunged include:
- 1st and 2nd degree felonies;
- Violent 1st and 2nd degree misdemeanors (including domestic violence);
- Sexual battery; and
- Driver’s license and motor vehicle violations
For a complete list of offenses that cannot be expunged, contact the court where you were convicted.
Each state has different requirement and procedures for expunging or sealing a criminal record. The first step is to contact your local Clerk’s office at the court where you were convicted to obtain a “final order” of the conviction. Contacting this office will help determine whether you are eligible to expunge or seal your criminal record.
When explaining your criminal record, be sure to focus on what you learned. Focus your conversations on the present and future rather then the past, and highlight what your experience can bring to the particular position.
Ex-offenders can seek professional assistance from local organizations. Help For Felons has created a list of organizations in each state that can help people with criminal records find employment. There are also some companies, like the ones listed here, which are ‘felon-friendly’ employers and make it relatively easier to get a job with criminal record. Also, you may want to consider starting your own business. The Small Business Administration has a ten-step process to help you do so.
Yes, an employer may ask about your conviction record in an interview. It is important to answer specifically based on the questions that are asked and to answer truthfully. If you do not answer truthfully in an interview, the employer has the legal right to refuse to hire you. If you are hired and the employer later finds out that you lied during the interview, they may fire you.
While most states ban the use of arrest history that did not lead to conviction in hiring decisions, most states do not ban employers from asking about arrests in interviews. Most states allow most or all potential employers to ask about arrests as well as convictions during a job interview. If you live in a state that does not prohibit employers from asking about arrests, it is important that you answer this question truthfully.
If your record is expunged, you can answer “No, I do not have a criminal record.” By law, an employer is not allowed to ask you about any charges, arrests or convictions that have been expunged from your record. After the record is expunged, it is legally considered to no longer exist. This includes charges or cases that were dismissed, or where you were found not guilty. This does not include multiple charges for the same offense where only some of the charges were dropped.
Generally, most state law prohibits the use of past crimes or arrest records as a factor against you in a hiring decision unless it is in some way relevant to the job position, or if your conviction bans your from working in that particular field. In some cases, the use of criminal records in a hiring decision may be discriminatory. If you think your rights may have been violated, you should contact a lawyer licensed in your state.
Ban the Box is a campaign to remove questions about past criminal convictions from job applications and push background checks to a later point in the hiring process so that employers consider a candidate’s qualifications first without the stigma of a past criminal conviction.
The campaign has been growing with over 150 counties and cities adopting Ban the Box style laws and 30 states. Furthermore, the federal government has ‘banned the box’ in regards to federal employers, though not federal contractors. The following states have some form of Ban the Box laws:
- New Jersey
- New Mexico
- New York
- Rhode Island
Ten states have mandated the removal of conviction history questions from job applications for private employers:
- New Jersey
- Rhode Island
Because this is a relatively new campaign, there is still debate as to whether it truly removes the bias associated with hiring individuals with criminal records. Many studies have found that these types of policies do not prevent a bias because employers are still likely to have a bias towards those they believe may have a criminal record. This opens the doors to new issues such as racial discrimination; however, both sides believe that this campaign does more good than harm.
For more information about Ban the Box, visit our Ban the Box State Laws page.
CAUTION: Additional laws may apply. If the chart below indicates that your state has no statute, this means there is no law that specifically addresses the issue. However, there may be a state administrative regulation or local ordinance that does control arrest and conviction records. Call your state department of labor for more information.
The following chart summarizes state laws and regulations on whether an employer can get access to an employee’s or prospective employee’s past arrests or convictions. It includes citations to statutes and agency websites, as available.
Many states allow or require private sector employers to run background checks on workers, particularly in fields like child care, elder care, home health care, private schools, private security, and the investment industry. Criminal background checks usually consist of sending the applicant’s name (and sometimes fingerprints) to the state police or to the FBI. State law may forbid hiring people with certain kinds of prior convictions, depending on the kind of job or license involved.
Federal law allows the states to establish procedures for requesting a nationwide background check to find out if a person has been “convicted of a crime that bears upon the [person’s] fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities.” (42 U.S.C.A. § 5119a(a)(1).)
If your state isn’t listed in this chart, then it doesn’t have a general statute on whether private sector employers can find out about arrests or convictions. There might be a law about your particular industry, though.
It’s always a good idea to consult your state’s nondiscrimination enforcement agency or labor department to see what kinds of questions you can ask. The agency guidelines are designed to help employers comply with state and federal law. For further information, contact your state’s agency.
Agency guidelines for preemployment inquiries: Alaska Department of Labor and Workforce Development, Alaska Employer Handbook, “Preemployment Questioning”.
Ariz. Rev. Stat. § 13-904(E)
Rights of employees and applicants: Unless the offense has a reasonable relationship to the occupation, an occupational license may not be denied solely on the basis of a felony or misdemeanor conviction.
Cal. Lab. Code § 432.7
Rules for employers:
- Arrest records. May not ask about an arrest that did not lead to conviction; may not ask about pretrial or posttrial diversion program. May ask about arrest if prospective employee is awaiting trial.
- Convictions. May ask about conviction even if no sentence is imposed.
Agency guidelines for preemployment inquiries: Department of Fair Employment and Housing, “Preemployment Inquiry Guidelines”.
Colo. Rev. Stat. §§ 24-72-308 (II)(f)(I), 8-3-108(m)
Rules for employers: May not inquire about arrest for civil or military disobedience unless it resulted in conviction.
Rights of employees and applicants: May not be required to disclose any information in a sealed record; may answer questions about arrests or convictions as though they had not occurred.
Agency guidelines for preemployment inquiries: Colorado Civil Rights Division, Publications, “Pre-Employment Inquiries”.
Conn. Gen. Stat. Ann. §§ 46a-79, 46a-80, 31-51i
Rules for employers: State policy encourages hiring qualified applicants with criminal records. If an employment application form contains any question concerning criminal history, it must include a notice in clear and conspicuous language that (1) the applicant is not required to disclose the existence of any arrest, criminal charge, or conviction, the records of which have been erased; (2) defining what criminal records are subject to erasure; and (3) any person whose criminal records have been erased will be treated as if never arrested and my swear so under oath. Employer may not disclose information about a job applicant’s criminal history except to members of the personnel department or, if there is no personnel department, person(s) in charge of hiring or conducting the interview.
Rights of employees and applicants: May not be asked to disclose information about a criminal record that has been erased; may answer any question as though arrest or conviction never took place. May not be discriminated against in hiring or continued employment on the basis of an erased criminal record. If conviction of a crime has been used as a basis to reject an applicant, the rejection must be in writing and specifically state the evidence presented and the reason for rejection.
Del. Code Ann. tit. 11, § 4374(e)
Rights of employees and applicants: Do not have to disclose an arrest or conviction record that has been expunged.
Fla. Stat. Ann. § 112.011
Rights of employees and applicants: May not be disqualified to practice or pursue any occupation or profession that requires a license, permit, or certificate because of a prior conviction, unless it was for a felony or first-degree misdemeanor and is directly related to the specific line of work.
Ga. Code Ann. §§ 35-3-34, 42-8-62, 42-8-63
Rules for employers: In order to obtain a criminal record from the state Crime Information Center, employer must supply the individual’s fingerprints or signed consent. If an adverse employment decision is made on the basis of the record, must disclose all information in the record to the employee or applicant and tell how it affected the decision.
Rights of employees and applicants: Probation for a first offense is not a conviction; may not be disqualified for employment once probation is completed.
Haw. Rev. Stat. §§ 378-2, 378-2.5, 831-3.2
Rules for employers:
- Arrest records. It is a violation of law for any employer to refuse to hire, to discharge, or to discriminate in terms of compensation, conditions, or privileges of employment because of a person’s arrest or court record.
- Convictions. May inquire into a conviction only after making a conditional offer of employment, provided it has a rational relation to job. May not examine any convictions over 10 years old.
Rights of employees and applicants: If an arrest or conviction has been expunged, may state that no record exists and may respond to questions as a person with no record would respond.
Agency guidelines for preemployment inquiries: Hawaii Civil Rights Commission, “Guideline for Pre-Employment Inquiries”.
Agency guidelines for preemployment inquiries: Idaho Human Rights Commission, “Preemployment Inquiries”.
775 Ill. Comp. Stat. § 5/2-103
Rules for employers: It is a civil rights violation to ask about an arrest or criminal history record that has been expunged or sealed, or to use the fact of an arrest or criminal history record as a basis for refusing to hire or to renew employment. Law does not prohibit employer from using other means to find out if person actually engaged in conduct for which they were arrested.
Kan. Stat. Ann. §§ 22-4710
Rules for employers: Cannot require an employee to inspect or challenge a criminal record in order to obtain a copy of the record, but may require an applicant to sign a release to allow employer to obtain record to determine fitness for employment. Employers can require access to criminal records for specific businesses.
Agency guidelines for preemployment inquiries: Kansas Human Rights Commission, “Guidelines on Equal Employment Practices: Preventing Discrimination in Hiring”.
La. Rev. Stat. Ann. § 37:2950
Rights of employees and applicants: Prior conviction cannot be used as a sole basis to deny employment or an occupational or professional license, unless conviction is for a felony and directly relates to the job or license being sought.
Special situations: Protection does not apply to medical, engineering and architecture, or funeral and embalming licenses, among others listed in the statute.
Me. Rev. Stat. Ann. tit. 5, § 5301
Rights of employees and applicants: A conviction is not an automatic bar to obtaining an occupational or professional license. Only convictions that directly relate to the profession or occupation, that include dishonesty or false statements, that are subject to imprisonment for more than 1 year, or that involve sexual misconduct on the part of a licensee may be considered.
Agency guidelines for preemployment inquiries: The Maine Human Rights Commission, “Pre-employment Inquiry Guide”, suggests that asking about arrests is an improper race-based question, but that it is okay to ask about a conviction if related to the job.
Md. Code Ann. [Crim. Proc.], § 10-109; Md. Regs. Code 09.01.10.02
Rules for employers: May not inquire about any criminal charges that have been expunged. May not use a refusal to disclose information as sole basis for not hiring an applicant.
Rights of employees and applicants: Need not refer to or give any information about an expunged charge. A professional or occupational license may not be refused or revoked simply because of a conviction; agency must consider the nature of the crime and its relation to the occupation or profession; the conviction’s relevance to the applicant’s fitness and qualifications; when conviction occurred and other convictions, if any; and the applicant’s behavior before and after conviction.
Agency guidelines for preemployment inquiries: The Office of Equal Opportunity and Program Equity, “Guidelines for Preemployment Inquiries Technical Assistance Guide”.
Mass. Gen. Laws ch. 151B, § 4; ch. 276, § 100A; Mass. Regs. Code tit. 804, § 3.02
Rules for employers: If job application has a question about prior arrests or convictions, it must include a formulated statement (that appears in the statute) that states that an applicant with a sealed record is entitled to answer, “No record.”
- Arrest records. May not ask about arrests that did not result in conviction.
- Convictions. May not ask about first-time convictions for drunkenness, simple assault, speeding, minor traffic violations, or disturbing the peace; may not ask about misdemeanor convictions 5 or more years old.
Rights of employees and applicants: If criminal record is sealed, may answer, “No record” to any inquiry about past arrests or convictions.
Agency guidelines for preemployment inquiries: Massachusetts Commission Against Discrimination, “Discrimination on the Basis of Criminal Record”.
Mich. Comp. Laws § 37.2205a
Rules for employers: May not request information on any arrests or misdemeanor charges that did not result in conviction.
Rights of employees and applicants: Employees or applicants are not making a false statement if they fail to disclose information they have a civil right to withhold.
Agency guidelines for preemployment inquiries: Michigan Civil Rights Commission, “Preemployment Inquiry Guide”.
Minn. Stat. Ann. §§ 364.01 to 364.03
Rules for employers: State policy encourages the rehabilitation of criminal offenders; employment opportunity is considered essential to rehabilitation.
Rights of employees and applicants: No one can be disqualified from pursuing or practicing an occupation that requires a license, unless the crime directly relates to the occupation. Agency may consider the nature and seriousness of the crime and its relation to the applicant’s fitness for the occupation. Even if the crime does relate to the occupation, a person who provides evidence of rehabilitation and present fitness cannot be disqualified.
Agency guidelines for preemployment inquiries: Minnesota Department of Human Rights, “Hiring, Job Interviews and the Minnesota Human Rights Act”.
Agency guidelines for preemployment inquiries: Commission on Human Rights, Missouri Department of Labor and Industrial Relations, “Preemployment Inquiries”.
Neb. Rev. Stat. § 29-3523
Rules for employers: After one year from date of arrest, may not obtain access to information regarding arrests if no charges are completed or pending.
Nev. Rev. Stat. Ann. §§ 179.301, 179A.100(3)
Rules for employers: May obtain a prospective employee’s criminal history record only if it includes convictions or a pending charge, including parole or probation.
Special situations: State Gaming Board may inquire into sealed records to see if conviction relates to gaming.
Agency guidelines for preemployment inquiries: Nevada Equal Rights Commission, “Preemployment Inquiry Guide”.
N.H. Rev. Stat. Ann. § 651:5 (X)(c); N.H. Code Admin. R. Hum. 405.03
Rules for employers: May ask about a previous criminal record only if question substantially follows this wording, “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”
- Arrest records. It is unlawful discrimination for an employer to ask about an arrest record, to have a job requirement that applicant have no arrest record, or to use information about arrest record to make a hiring decision, unless it is a business necessity. It is unlawful discrimination to ask about arrest record if it has the purpose or effect of discouraging applicants of a particular racial or national origin group.
N.J. Stat. Ann. §§ 5:5-34.1, 5:12-89 to 5:12-91, 32:23-86; N.J. Admin. Code tit. 13, §§ 59-1.2, 59-1.6
Rules for employers: May obtain information about convictions and pending arrests or charges to determine the subject’s qualifications for employment. Employers must certify that they will provide sufficient time for applicant to challenge, correct, or complete record, and will not presume guilt for any pending charges or court actions.
Rights of employees and applicants: Applicant who is disqualified for employment based on criminal record must be given adequate notice and reasonable time to confirm or deny accuracy of information.
Special situations: There are specific rules for casino employees, longshoremen and related occupations, horse racing, and other gaming industry jobs.
Criminal Offender Employment Act, N.M. Stat. Ann. § 28-2-3
For a license, permit, or other authority to engage in any regulated trade, business, or profession, a regulating agency may consider convictions for felonies and for misdemeanors involving moral turpitude. Such convictions cannot be an automatic bar to authority to practice in the regulated field, though.
N.Y. Correct. Law §§ 750 to 754; N.Y. Exec. Law § 296(16)
Rules for employers:
- Arrest records. It is unlawful discrimination to ask about any arrests or charges that did not result in conviction, unless they are currently pending.
- Convictions. Employers with 10 or more employees may not deny employment based on a conviction unless it relates directly to the job or would be an “unreasonable” risk to property or to public or individual safety.
Rights of employees and applicants: Upon request, applicant must be given, within 30 days, a written statement of the reasons why employment was denied.
Agency guidelines for preemployment inquiries: New York State Division of Human Rights, “Recommendations on Employment Inquiries”.
N.D. Cent. Code § 12-60-16.6
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.
Agency guidelines for preemployment inquiries: North Dakota Department of Labor, Human Rights Division, “Employment Applications and Interviews”.
Ohio Rev. Code Ann. §§ 2151.357, 2953.33, 2953.55
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.
Okla. Stat. Ann. tit. 22, § 19(F)
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.
Or. Rev. Stat. §§ 181.555 and 181.560, 659A.030
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.”
- Arrest records. May request information about arrest records less than 1 year old that have not resulted in acquittal or have not been dismissed.
- Convictions. May request information about conviction records.
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.
18 Pa. Cons. Stat. Ann. § 9125
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.
R.I. Gen. Laws §§ 12-1.3-4, 28-5-7(7)
Rules for employers:
- Arrest records. It is unlawful to include on an application form or to ask as part of an interview if the applicant has ever been arrested or charged with any crime.
- Convictions. May ask if applicant has been convicted of a crime.
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.
Tex. Bus. & Com. Code Ann. § 20.05 (Vernon 2005).
Rules for employers: For a job expected to pay less than $75,000 they, generally, may not obtain a criminal record older than seven years.
Utah Admin. R. 606-2
Rules for employers: Utah Labor Division Anti-Discrimination Rules, Rule R606-2. “Preemployment Inquiry Guide”.
- Arrest records. It is not permissible to ask about arrests.
- Convictions. Asking about felony convictions is permitted but is not advisable unless related to job.
Vt. Stat. Ann. tit. 20, § 2056c
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.
Va. Code Ann. § 19.2-392.4
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.
Wash. Rev. Code Ann. §§ 43.43.815, 9.94A.640(3), 9.96.060(3), 9.96A.020; Wash. Admin. Code § 162-12-140
Rules for employers:
- Arrest records. Employer who asks about arrests must ask whether the charges are still pending, have been dismissed, or led to conviction that would adversely affect job performance once and the arrest occurred within the last ten years.
- Convictions. Employer who obtains a conviction record must notify employee within 30 days of receiving it and must allow the employee to examine it. May make an employment decision based on a conviction only if it is less than 10 years old and the crime involves behavior that would adversely affect job performance.
Rights of employees and applicants: If a conviction record is cleared or vacated, may answer questions as though the conviction never occurred. A person convicted of a felony cannot be refused an occupational license unless the conviction is less than 10 years old and the felony relates specifically to the occupation or business.
Special situations: Employers are entitled to obtain complete criminal record information for positions that require bonding, or that have access to trade secrets, confidential or proprietary business information, money, or items of value.
Agency guidelines for preemployment inquiries: Washington Human Rights Commission’s “Pre-employment Inquiries Guide”
Agency guidelines for preemployment inquiries: Bureau of Employment Programs, “Preemployment Inquiries Technical Assistance Guide”. The state’s website says that employers can only make inquiries about convictions directly related to the job. Consider the nature and recentness of the conviction and evidence of rehabilitation. Include a disclaimer that a conviction is not necessarily a bar to employment.
Wis. Stat. Ann. §§ 111.31 and 111.335
Rules for employers: It is a violation of state civil rights law to discriminate against an employee on the basis of a prior arrest or conviction record.
- Arrest records. May not ask about arrests unless there are pending charges.
- Convictions. May not ask about convictions unless charges substantially relate to job.
Special situations: Employers are entitled to obtain complete criminal record information for positions that require bonding and for burglar alarm installers.
Agency guidelines for preemployment inquiries: Wisconsin Department of Workforce Development, Civil Rights Division Publications, Fair Hiring & Avoiding Loaded Interview Questions.