Interviewing for a job can be stressful enough when you have only the present and future to worry about. But when a potential employer looks at your past – and it will – that can multiply the stress tenfold, especially if there are elements of your personal history, such as a past arrest and/or a criminal conviction that you would rather not see come to light.
Fortunately, local, state, and federal law limits how an employer may obtain the information, when they may obtain the information and what they may do with the information. For example, under Pennsylvania’s Criminal History Record Information Act (CHRIA), even if you have been arrested or have criminal convictions on your record, a potential employer is limited in exactly how it may use the information when making a hiring determination. For example, pursuant to CHRIA, an employer may consider felony and misdemeanor convictions “…only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”
The Equal Employment Opportunity Commission (EEOC) states that job seekers, pursuant to Title VII of the Civil Rights Act of 1964, may not be denied employment solely because of their past criminal activity. Furthermore, when using criminal conviction information as a factor in making an employment decision, employers should take into account the time since the conviction, the nature of the crime, and how it relates, if at all, to the position being sought. For example, a moving violation should not be of importance if the job does not require the operation of a vehicle.
In Philadelphia, which has enacted the Fair Practice Ordinance, or FPO, employers must remove the “box” on job applications asking about criminal records. Employers are also barred from requesting information with regard to an arrest that did not lead to a conviction, may only run a criminal background check after a conditional offer of employment, and may only use conviction information within seven (7) years of the application after considering the type of offense, how much time has elapsed since the offense, the applicant’s job history, evidence of rehabilitation, and other factors.
You must be informed
If you are applying for a job and a potential employer plans to use a third-party company to perform a background check, it must inform you and secure your written permission to do so pursuant to the Fair Credit Reporting Act (FCRA). It then must provide you with a copy of the subsequent report and inform you if they will not offer a position along with a summary of rights under the FCRA. This gives you the opportunity to dispute incomplete or inaccurate information found in the report. A potential employer also may conduct an investigation into your background on its own, without using a third party, in any way it chooses, including posing questions on an application or asking you directly. An exception to this is Philadelphia or another local jurisdiction that may have adopted a “Ban the Box” law.
Similar to a consumer credit report, a third-party background check can report on criminal convictions indefinitely, but civil suits, paid tax liens, accounts placed on collection, and other negative information generally has a seven-year statute of limitations; for bankruptcies, the limit is 10 years.
Making a mistake in your past shouldn’t prevent you from finding or keeping your job. If you feel that you’ve been wrongly rejected for employment, not promoted, or face some other negative employment decision due to arrest or stale conviction information, contact one of the experienced employment law attorneys at Willig, Williams & Davidson at (800) 631-1233 to ensure that your rights as a job seeker have not been infringed. To learn more about similar cases our attorneys have handled with regard to arrest and criminal records, including a current case against SEPTA, click here.