Federal and State Provisions for Employee Background Checks and Criminal Records

It can be a rough rode to employment for anyone with a blemish on their criminal record. In the United States, that’s at least sixty-five million people! The vast majority of employers include a criminal background check in their hiring process (at least 92% according to one survey), which puts a lot of job seekers in hot water and they try to reenter the workforce as contributing members of society.

Federal Protections for Applicants

There are two main federal laws that are designed to protect consumers and job applicants with criminal histories as they seek employment and housing.

First, there’s the FCRA, the Fair Credit Reporting Act, which outlines the ways consumer reports are handled by both background check agencies and the employers who work with them. Among other things, the FCRA requires that consumers are given the chance to see, challenge, and correct any inaccuracies on their reports.

Second, there is Title VII, which is enforced by the Equal Employment Opportunity Commission (EEOC) and prohibits job discrimination. The EEOC hones in on employee practices and policies that disproportionately target protected classes of people. Under Title VII, employees must:

  • consider the nature of the job and the particular offense
  • consider the gravity of the offense
  • consider the amount of time that has passed since the offense
  • give applicants a chance to demonstrate merit before criminal records are analyzed

State-Level Protections

Applicant protections vary on a state-by-state basis and can include requirements for employers to:

  • consider whether the offense reasonably relates to the job in question
  • refrain from asking questions about arrest and criminal records that have been expunged
  • refrain from considering offenses more than ten years old


Let us know if you have any questions about how you should be handling criminal records at your organization.

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