In June, 2013, the U.S. Department of Labor awarded Face Forward grants in the amount of $26 million dollars to 28 organizations that help rehabilitate youth offenders so that they can find jobs. The purpose of these grants is to help young people between the ages of 16-24 years of age have their criminal records expunged. More than 5,000 minors and young adults could benefit from this funding.
What this does is raise questions in the minds of employers. What if employers do find out about the erased convictions? Are the laws or regulations in place currently designed to prevent them from discriminating against applicants because of their criminal history? There do seem to be some gray areas when it comes to expunged records, however.
Under the Civil Rights Act of 1964, having a criminal record is not a protected status when it comes to employment. In 2012, however, the EEOC published guidelines stating the following: “An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under” the Act of 1964. As many employers now know, the EEOC wants companies to move away from a hard line of “we don’t hire anyone with a conviction or felony” to the considering of multiple factors:
1) The nature and gravity of the offense
2) The time that’s passed since the offense or completion of the sentence
3) The nature of the job sought
When considering expunged records, however, the EEOC does note draw a line that specifically addresses this matter. Some cities and states, however, have laws forbidding employers from asking about these types of records. No matter where an applicant lives, they can legally answer no if the conviction has been expunged.
This is where employment screening comes into play. If an applicant answers no on a job application with the hope that a criminal search will not be conducted, and the result of a background check bring back the record that was supposedly expunged, an employer may consider adverse action for lack of honesty in the application process. There are also situations where records that were supposed to be expunged have either not gone through to completion due to delays at the court, or just simply were never updated. Employers must give an applicant the opportunity to dispute any information returned, and if necessary, the applicant can receive a judicial clearance if indeed it is an error with the court that caused the expunged information to be returned via an employment screening.
The best way to ensure accurate results are to utilize a background screening company that utilizes court based searches. Databases can provide out of date information, and if a company decides to run a criminal check themselves through an online database, they can find themselves at risk of dealing with litigation due to adverse action that was based on out of date records.
It’s advised that if an applicant reveals information about an expunged conviction, employers should not respond with follow up questions about it. Allow a background check company like PeopleG2 to conduct a court based criminal search, provide accurate information based on court records, and provide the opportunity for an applicant to clear matters up with the courts before deciding to refuse employment. Even with expunged records that might be revealed by an applicant, it is important for any employer to consider the Civil Rights Act, and, as the EEOC states, to “not exclude applicants based on certain criminal conduct that may impact some individuals that are protected under the Act, and my violate the law if not job-related and consistent with business necessity.”