Federal and state law gives employees and applicants significant rights when it comes to criminal background checks.
Having a criminal record can make finding a job difficult. That is why the law gives applicants and employees numerous rights when it comes to adverse actions taken because of the results of a criminal background check.
The Fair Credit Reporting Act governs many aspects of background checks. For example, an applicant or employee must be notified clearly and conspicuously if an employer is going to conduct a background check. The employee or applicant must give consent, in writing, before an employer can conduct such a check. If adverse action is taken on the basis of a background check, then the employer must provide the applicant or employee with:
- The name and contact information of the credit reporting agency that conducted the background check.
- A statement regarding the rights of the applicant or employee to contest the background check.
- Notification that the applicant or employee has a right to a free report of the results of the background check.
Adverse action includes a refusal to hire, termination, suspension, demotion, or other action that harms an employee or applicant.
There is no federal law that bans employers from refusing to hire an applicant because of the results of an accurate background check. However, Title VII of the Civil Rights Act prevents discrimination on the basis of race, religion, gender, national origin, and other protected classes. Because more people of color are convicted of crimes, a blanket rule by an employer banning hiring because of a previous criminal conviction may violate discrimination laws. The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining what factors an employer can consider when taking adverse action because of a criminal conviction. These include:
- The severity of the criminal offense
- How long ago the offense occurred; and
- The job duties of the prospective employee.
Michigan employment law evolving
Many states have also enacted “ban the box” laws, which prevent employers from including a box in an application form that asks the applicant if he or she is a convicted felon. Michigan has not yet passed such a law, however. A bill was introduced in 2013, but did not reach the floor. In late 2014, Governor Rick Snyder did sign into law certain protections for Michigan employers who hire applicants previously convicted on felony charges. Among its provisions, the new law ensures that previous time served cannot be used to establish a lack of moral character. It also protects some employers from liability if they subsequently hire a previous felony offender.
Have your rights been violated?
Inaccurate background check results are a significant problem for many applicants. In addition, many employers fail to comply with FCRA requirements when conducting background checks. Finally, while a criminal record can prevent employment in certain fields, a criminal conviction is not a complete bar to future employment – and applicants and employees do have rights.
The experienced employment law attorneys at Miller Cohen, PLC, can help Michigan workers protect their rights under the law and discuss legal options for those who have experienced discrimination or violation of federal law based on a criminal background check.
Keywords: Criminal background check, employment, Fair Credit Reporting Act, applicant rights.