The laws on what information is included in background checks vary by state and local jurisdiction. Arrest records are generally included in background checks, but conviction records are often excluded. Many states and localities have ban-the-box laws that require employers to delay asking about criminal history until after a job offer is made. It helps protect against discrimination claims.
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Employment
While there are many good reasons to investigate someone’s background before hiring them, employers should be aware that there are rules that restrict the depth and timeliness of criminal history checks. State, county and city rules may push questions about criminal records to or prevent them later in the hiring process. These laws are designed to protect minorities and groups from discriminatory hiring practices. For example, some localities, like Hartford, Connecticut and Portland, Oregon, prohibit employers from disqualifying candidates based on arrests or criminal accusations that did not result in convictions. It is important because arrest records do not indicate guilt or innocence and can lead to false conclusions. The Equal Employment Opportunity Commission (EEOC) also advises against using arrest records as a basis for making employment-related decisions. Public employers can only ask about an applicant’s criminal record after a final interview or conditional offer. Then, they must follow specific procedural standards and substantive criteria to determine whether a particular crime has a “direct relationship” to the position sought. Additionally, they must notify rejected candidates in writing and allow them to discuss the specific reason why.
Security Clearance
If you apply to work with the federal government or for a job that requires a security clearance, a criminal history background check should be done thoroughly. The level of vetting required depends on the risk of mishandling classified information or endangering national security. The government will check your criminal record, credit report, employment and education records, references, foreign entanglements, trustworthiness, family associations, habits, financial issues, drug and alcohol use, past residences, compromising activities and more. Investigators will also review the Standard Forms you fill out and look for inconsistencies or discrepancies that could indicate dishonesty. Be open and honest in your answers and provide the most complete and accurate information you can. If your employer tells you not to apply because of a criminal record, this could violate the Fair Chance Act and may be illegal discrimination.
According to federal legislation, employers are not allowed to reject significantly more applicants from one racial group than from others with comparable criminal records, which forbids discrimination based on race or national origin. Employers should carefully evaluate an applicant’s circumstances before hiring and only inquire about a criminal history after making a conditional offer of employment. If an employer’s policy results in blanket rejection of qualified black men with felony convictions, this is likely to violate the Fair Chance Act and other laws.
Adoption
The decision to use a criminal background check as part of the adoption process must be made by family members seeking to adopt children from foster care. It is not a requirement by state law. The Illinois Adoption Act does require a fingerprint-based federal and state criminal history records check for all adoptive parents, household members and prospective adoptive siblings over the age of 19. The check must include a review of all public records of arrests, convictions and sentence information reported to DCJS, including any history of sexual offense or domestic violence offense that resulted in a criminal conviction. Several states, counties and cities have adopted ban-the-box laws that limit how employers can ask candidates about their criminal histories and when. It helps reduce the stigma attached to criminal convictions and allows the applicant to focus on their skills and qualifications first. Some states that do not have ban-the-box laws allow employers to consider a candidate’s criminal history, but only if they make an individualized assessment of that information and weigh factors like how long ago the crime occurred, whether it has a direct bearing on job duties, and how old the applicant was at the time of the arrest or conviction. Additionally, they must allow applicants to see the criminal history report.
Travel
Obtaining a criminal background check for travel purposes can be a challenge. You must request the document from the appropriate government agency, such as the police department or a local district attorney’s office. You may also have to get an apostille, a seal and a stamp placed on a document to verify its authenticity in other countries. Most embassies and consulates can provide this service, but you must make an appointment and present your documents and a form of identification. You can also hire a private apostille company to complete this task. For instance, if a person has an arrest record and wants to work in a job that requires them to travel abroad, the employer will want to conduct a background check of that person. However, this information can be difficult to find in some countries because most criminal records are only available at a state level and not in a national database. In addition, some states require deleting an arrest record or a sealed conviction for it not to be reported on a background check. Employers cannot ask about an applicant’s arrest history until they have made a job offer, but they can consider that information once they have. If an employer excludes someone based on their arrest record and that exclusion is based on race or national origin, the employer could be violating Title VII.
