Can An Employer Refuse to Hire Applicants Because of Their Criminal Record?

Many people have some type of criminal record and that record can impact their ability to be hired by a number of employers.

Criminal Records

Criminal records are documentation of a person’s criminal history that has been gathered and maintained by various local, state and federal law enforcement agencies. Criminal records may include minor offenses such as traffic violations as well as more serious felony offenses.

Criminal records are used by employers, landlords, lenders and other parties who are attempting to determine a particular person’s commission of crimes. Criminal records can also be reviewed by agencies that provide occupational licenses and if the applicant for a license has been convicted of a crime that relates to the fitness of acquiring a particular occupational license.

A criminal record may bar employment in certain fields. For example, a criminal record might bar an applicant from employment in banks. Some industries deal with individuals who are vulnerable, such as children or elders, and specific criminal convictions may prohibit the hiring of applicants.

Hiring Decisions and Criminal Records

Employers are generally permitted to use criminal records in hiring decisions. However, there are prohibitions against using criminal records as a complete ban on hiring in many situations. For example, an employer generally cannot state that all felons are banned from working for the company. Instead, the employer is required to show that business necessity required the employer not to hire the applicant. This assessment is based on the reasonable relation of the employer’s decision and the criminal conduct involved. This process helps determine how the criminal record relates to the job requirements.

Federal Laws

In addition to state prohibitions, federal law prohibits employers from discriminating against applicants when using criminal history information. For example, if an employer treats people with similar criminal records in a different manner due to their race, national origin, color, sex or religion, he or she may be violating federal civil rights laws. Additionally, federal law prohibits employers from implementing employment policies that screen individuals based on criminal history if they significantly disadvantage a certain group of people who are protected under federal law and if they do not assist the employer in accurately determining if the applicant is appropriate based on being responsible, safe and reliable.

Arrest Records

Conviction records are much different than arrest records. A conviction is usually adequate to show that a person actually engaged in specified criminal conduct. However, arrest records are very different. In most situations, employers cannot use arrest records when making hiring decisions as an arrest is not indicative of the commission of a crime. An arrest is not definitive proof that a person actually engaged in criminal conduct. The arrest record is standing alone is often not enough for an employer to legally prohibit an applicant from being hired. However, an arrest record can be used insofar as to determine whether the conduct involved in the arrest justifies the non-hiring.

Several states have laws that prohibit employers from using arrest records. Some of these states also prohibit employers from using conviction records to dictate employment decisions. Sometimes employers may have to wait until later in the hiring process to ask about conviction records. Some state laws prohibit an employer from asking about arrest records altogether. Others have laws that allow employers to use arrest records but ban employers from being able to automatically exclude individuals from employment due to information on their arrest record alone.

If an arrest is used for an adverse employment decision, there may be certain conditions that must be met. These conditions may include that the arrest occurred within a certain period of time, such as five years from the date of the application. Additionally, it may be a condition for the employer to find that the applicant actually committed the crime. Furthermore, there must usually be a relationship between the job position and the reason for arrest, such as a theft arrest when an employee will be handling cash as part of the job.


In most situations, an employer cannot view crimes for which a person has been expunged. These are crimes that have been removed from a person’s criminal record. This is not always the case, such as when the employee is seeking employment with a law enforcement agency. Individuals who are concerned that their criminal history may result in their not being hired for a position may wish to contact a criminal defense lawyer for assistance in seeking an expungement.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case.

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