Federal law does not prohibit employers from asking about your criminal history. But, federal Equal Employment Opportunities (EEO) laws do prohibit employers from discriminating when they use criminal history information. Using criminal history information to make employment decisions may violate federal law if not used correctly.

  1. Federal law prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another protected characteristic (which includes color, sex, and religion).
  2. Federal law prohibits employers from using policies or practices that screen individuals based on criminal history information if:
  • They significantly disadvantage federally protected individuals such as African Americans and Hispanics; AND
  • They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

The Difference Between Arrest Records and Conviction Records

The fact that an individual was arrested is not proof that he or she engaged in criminal conduct. Therefore, an individual’s arrest record standing alone may not be used by an employer to take a negative employment action; such as, not hiring, firing or suspending an applicant or employee.

In contrast, a conviction record will usually be sufficient to demonstrate that a person engaged in particular criminal conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

Several states’ laws limit employers’ use of arrest and conviction records to make employment decisions. These laws may prohibit employers from asking about arrest records or require employers to wait until late in the hiring process to ask about conviction records. If you have questions about these kinds of laws, you should contact your state fair employment agency for more information.

Social Media Implications

Employers may not ask or require applicants to establish or maintain a personal social media account or to disclose usernames and passwords to personal social media accounts. Also, the employer may not require the applicant to disclose a username or password to the account. Researching an applicant’s social media account during the hiring process is not against FCRA regulations. However, the employer should take caution when using information from an applicant’s social media account in making an adverse hiring decision.

Consumer Protections and Criminal Background Checks

Employers that obtain an applicant’s or employee’s criminal history information from consumer reporting agencies (CRAs) also must follow the Fair Credit Reporting Act (FCRA). For example, FCRA requires employers to:

  • Get your permission before asking a CRA for a criminal history report;
  • Give you a copy of the report and a summary of your rights under FCRA before taking a negative employment action based on information in the report.
  • Send you certain notices if it decides not to hire or promote you based on the information in the CRA report.

For more information, visit the EEOC website at: https://www.eeoc.gov/