A Criminal Record Does Not Necessarily Result in Unemployability

Law Firm Newswire



Lakeland, FL (Law Firm Newswire) May 19, 2015 – The FBI has 77.7 million people listed in its master criminal database and add between 10,000 and 12,000 new names every day.

Many Americans with criminal records cannot find employment even if the record is decades old, minor, has been dropped, not corrected or if the court found them not guilty. Although a daunting hurdle to surmount, having a record does not necessarily result in unemployability, an inability to obtain housing or secure a loan.

One in every three American adults has a criminal record of some sort. The problem is that criminal records, once filed, are not always up to date and do not always reflect the final disposition of a case, which may include mistaken identity or the fact that a case was thrown out of court and dismissed. How do employers find out such information?

“With today’s technology, and companies who offer this kind of service, it is easy to find arrest records,” Thomas Grajek, a criminal defense attorney in Lakeland, Fla. outlines. “Many banks, landlords, college admission staff and employers, almost 90 percent of them, routinely check for the existence of a criminal record. The issue is that the record of an arrest is only one part of the story. The other critical part is an up-to-date and correct disposition of a case.”

If a case resolves without conviction locally, the FBI does not receive that updated information. What this means is only 50 percent of their records are completely up-to-date. Only the arrest part is usually on file, not the resolution of the case. In situations such as this, there is a case to be made for discrimination – something the U.S. Equal Employment Opportunity Commission (EEOC) foresaw over 25-years ago. In fact, the EEOC updated its guidelines in 2012 relating to employers using a blanket non-employment policy involving arrest records.

It is now more difficult for employers to automatically weed out those with a criminal record from any hiring process. Instead, exclusions from job hiring must be solely job-related and consistent with what a particular company requires for a vacant position. An example would be a man with a criminal record applying to a milling factory, but stating he could or would not would not wear safety headgear. Mill workers must wear such headgear to prevent accidents. This is a safety issue and not related to the individual’s criminal record.

“Further, the employer is strongly urged to apply a three-point test to determine if a job candidate, but for a criminal record, should be hired. They must consider what the crime involved, how long ago it took place and the nature of the job that needs to be filled,” Grajek says. The three-point test is theoretically designed to ensure any exclusion of a job applicant based on a criminal record accurately differentiates between those who do not pose an unacceptable risk to hire and those that do.

“If you have a criminal record and feel it is no longer an issue, but it turns out to be one when you apply for a job, your report may not be accurate. Under the Fair Credit Reporting Act any company offering criminal background checks must attempt to prevent inaccurate information being given to employers,” says Grajek.