Background Checks/Criminal History
Can Employers Deny Employment Based on Criminal History?
The answer is, it depends. Employers are increasingly running background checks on applicants which has resulted in applicants with criminal histories, and minorities in particular, being disproportionately excluded from jobs. While federal law is largely silent on this issue, many states and cities have laws and ordinances to protect applicants with a criminal history.
The Criminal History Record Information Act (“CHRIA”) is a Pennsylvania law that prohibits employers from considering felony or misdemeanor convictions during the hiring process UNLESS the conviction relates to the applicant’s suitability for the job. For example, an applicant who was convicted of stealing money can be denied a position as a bank teller. On the other hand, an applicant with a conviction for possession of marijuana when he/she was 18 may not be denied a position as a bank teller because of that conviction.
In Philadelphia, like many cities, a “Ban the Box” ordinance is in effect. The ordinance contains a number of provisions including one prohibiting employers from running a background check until after the employer makes a conditional offer of employment. This prevents employers from deciding not to interview applicants based on criminal history. Another provision prevents Philadelphia employers from considering criminal convictions prior to 7 years of the date of the employment application.
Federal law, specifically the Fair Credit Reporting Act, requires that employers who run background checks get an applicant’s written consent prior to running a check and notify the applicant in writing if the decision to not hire is made based on the results of that background check. Discrimination laws, like Title VII, may come into play particularly if a minority applicant is excluded as a result of a background check.
The laws and ordinances regarding the use of background checks and criminal histories vary widely between states and cities. The size of the company matters and there are exceptions for certain classes of jobs, including law enforcement and childcare providers. That is why it is extremely important that you consult with an attorney to see if you have been illegally denied employment.