More than 90 percent of companies conduct criminal background checks, and many of these companies have strict criminal records policies designed to protect the company from negligent hiring lawsuits.
However, while these polices may protect you from hiring liability, they may also be in violation of the Criminal History Record Information Act. This act controls the collection, maintenance, dissemination, destruction and use of criminal record information. But buried deep within this act is the instruction that felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to suitability for employment.
In other words, if an otherwise well-qualified applicant had a conviction for a misdemeanor marijuana possession and they apply for a banking job, they can't be tossed out on the basis of that conviction alone. It's against the law. This also applies to individuals who were arrested but never convicted of a crime.
CHRIA has a two-year statute of limitations, and if an employer is found to be in violation, the penalties are steep: in addition to losing the privilege to access all official criminal record information, the employer could also be liable for actual damages, litigation costs and attorney fees. Punitive damages can range from $1,000 to $10,000 for willful violations.
In short, no employer can have a policy that requires a completely clean record as a condition for employment. Employers must take into account the time since the arrest or condition, the circumstances of that conviction, how that conviction impacts the suitability of the candidate for the job, and what positive things that candidate has done since.
If you have been the target of workplace harassment, discrimination or unfair termination, please call us to talk about your case. Bouchillon, Crossan & Colburn, L.C. represents clients in federal court and before the EEOC, MSPB and in state and union grievance hearings.
Our attorneys have more than 40 years dedicated to giving clients the attention, advice, support and empowerment they need to effectively meet their goals. We are committed to the principle that all persons shall have equal justice under the law. Call Bouchillon, Crossan & Colburn, L.C. at 304.523.8451 or contact us online to schedule an appointment.