For millions of Americans with criminal records, the path to stable employment is often blocked by hiring practices that categorically exclude anyone with a conviction history—regardless of the nature of the offense, when it occurred, or its relevance to the job. This widespread discrimination not only harms individuals seeking to rebuild their lives but also contributes to recidivism and economic instability.
At Nisar Law Group, we regularly assist clients who face employment barriers due to past convictions. Understanding your legal rights and the protections that exist can make the difference between continued rejection and meaningful employment opportunities.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
The Impact of Criminal Record Discrimination
Criminal record discrimination affects an enormous segment of our population. With approximately 70 million Americans having some form of criminal record—nearly one in three adults—the employment consequences extend far beyond the individual to impact families, communities, and the broader economy.
The statistics tell a sobering story: individuals with criminal records experience unemployment rates that are up to five times higher than those without records. Even a minor conviction can reduce employer callback rates by more than 50%, with the impact disproportionately falling on communities of color due to disparities in the criminal justice system.
This discrimination creates a counterproductive cycle: without stable employment, individuals with records face higher rates of recidivism and continued economic hardship. Studies consistently show that steady employment is one of the strongest factors in reducing reoffending, making barriers to employment not just an individual problem but a public safety concern.
For employers, blanket policies against hiring people with records means missing out on qualified talent. Research indicates that employees with criminal records often demonstrate higher loyalty and lower turnover rates when given opportunities. Forward-thinking companies have recognized that individualized assessment rather than categorical exclusion leads to better hiring outcomes.
Ban the Box Laws: State and Local Variations
“Ban the Box” laws represent one of the most significant reforms addressing criminal record discrimination in employment. These laws—named for the checkbox on job applications asking about criminal history—seek to remove criminal history questions from the initial application process, allowing candidates to be evaluated on their qualifications before their record is considered.
Currently, 37 states and over 150 cities and counties have adopted some form of Ban the Box or fair chance hiring policies. These laws vary significantly in their scope, requirements, and enforcement mechanisms.
Key variations in Ban the Box laws include:
- Coverage scope: Some laws apply only to public employers, while others extend to government contractors and private employers
- Background check timing: Most laws delay background checks until after an initial interview or conditional offer
- Assessment requirements: Stronger laws require employers to consider the nature of the offense, time elapsed, and job relevance
- Notice provisions: Many laws require employers to notify candidates and explain rejection decisions
- Prohibited considerations: Various laws restrict consideration of arrests, sealed records, or old misdemeanors
In California, for example, the Fair Chance Act prohibits employers with five or more employees from asking about conviction history before making a conditional job offer. After making an offer, employers who want to deny employment based on criminal history must conduct an individualized assessment, provide written notice with specific reasons for the preliminary decision, and allow the applicant time to respond.
New York’s Fair Chance Act similarly prohibits employers from inquiring about criminal history until after extending a conditional offer and requires employers to analyze specific factors (known as the Article 23-A factors) before withdrawing an offer based on criminal history.
At the local level, cities like Philadelphia, Chicago, and San Francisco have enacted even stronger protections, with some imposing significant penalties for violations.
It’s crucial to understand which laws apply in your jurisdiction, as they provide the foundation for challenging discriminatory practices. A qualified employment attorney can help navigate these complex and sometimes overlapping protections.
EEOC Guidance on Criminal Background Checks
While there is no federal law explicitly prohibiting criminal record discrimination in employment, the Equal Employment Opportunity Commission (EEOC) provides important guidance under Title VII of the Civil Rights Act. The EEOC recognizes that blanket policies against hiring people with criminal records can constitute illegal discrimination because they disproportionately impact racial minorities.
In 2012, the EEOC issued comprehensive guidance addressing how employers should handle criminal background checks to avoid discriminatory impact. This guidance remains influential in shaping employer practices and court decisions.
The EEOC’s framework establishes that employers using criminal history information must demonstrate that their policies are “job-related and consistent with business necessity.” To meet this standard, employers should:
- Consider the nature and gravity of the offense
- Consider the time elapsed since the offense
- Consider the nature of the job sought
- Provide individualized assessment
- Offer an opportunity to explain
The EEOC guidance provides the foundation for disparate impact claims under Title VII. To pursue such a claim, you would need to demonstrate that an employer’s criminal record policy disproportionately excludes people of your protected class (typically established through statistical evidence), that the policy is not job-related and consistent with business necessity, or that a less discriminatory alternative practice exists that would serve the employer’s legitimate goals.
These cases can be challenging to pursue, as they often require statistical analysis and expert testimony, but they remain an important tool in challenging systemic discrimination, especially at larger employers.
When Can Employers Legally Consider Criminal Records?
While various laws protect against criminal record discrimination, employers can still legally consider criminal history in certain circumstances. Understanding these legitimate uses helps distinguish between lawful and unlawful practices.
Employers may have legitimate reasons to consider certain convictions when they are directly relevant to job duties or business risks. Courts and enforcement agencies typically recognize several situations where criminal history may be relevant:
- Positions with financial responsibility where certain financial crimes may be relevant
- Roles working with vulnerable populations where certain violent or sexual offenses may be relevant
- Jobs requiring specific licensing that has statutory restrictions based on criminal history
- Positions with access to controlled substances where drug-related offenses may be relevant
- Jobs with security concerns at sensitive installations or with access to confidential information
Even in these situations, however, employers should still conduct individualized assessments rather than applying blanket exclusions.
Some state or federal laws explicitly prohibit individuals with certain convictions from holding specific positions. When these statutory prohibitions exist, employers may be legally required to exclude candidates with specified convictions. However, these restrictions should be narrowly applied only to the positions actually covered by such regulations.
Employers sometimes justify broad criminal record policies by citing concerns about negligent hiring liability. While employers should take reasonable steps to ensure workplace safety, fears of negligent hiring are often exaggerated and don’t justify blanket exclusion policies.
Courts typically only find negligent hiring liability when an employer hired someone with a history of similar dangerous conduct for a position where that conduct could foreseeably cause harm, the employer failed to conduct a reasonable investigation, and the employee’s conduct caused actual harm related to their history.
The best protection against negligent hiring claims is not categorical exclusion but thorough individualized assessment of candidates—exactly what fair chance hiring laws require.
Fair Chance Act Compliance for Employers
For employers seeking to comply with fair chance hiring laws while making sound employment decisions, implementing a structured assessment process is essential. The following framework aligns with legal requirements in most jurisdictions and helps ensure fair consideration of candidates with criminal records.
Step 1: Delay Criminal History Inquiries
Under most Ban the Box laws, employers should remove criminal history questions from job applications, refrain from asking about criminal history during initial interviews, postpone background checks until later in the hiring process, and focus initial evaluations on qualifications, skills, and experience.
This approach ensures candidates are first evaluated on their merits rather than being automatically screened out based on criminal history.
Step 2: Conduct Proper Background Checks
When conducting background checks, employers should use reputable providers, ensure compliance with the Fair Credit Reporting Act, verify the accuracy of reported information, limit inquiries to relevant timeframes and conviction types, and be aware of state restrictions on reportable information.
Many background reports contain errors or include information that legally shouldn’t be considered, such as arrests not resulting in conviction, expunged or sealed records, or very old minor offenses.
Step 3: Perform Individualized Assessments
Before taking adverse action based on criminal history, employers should conduct an individualized assessment considering the nature and gravity of the offense, time elapsed since the offense, and the nature of the job sought.
Additional relevant factors include the age of the person at the time of the offense, evidence of rehabilitation or mitigating circumstances, employment history before and after the conviction, and character references and other evidence of fitness for the position.
Step 4: Follow Proper Adverse Action Procedures
If an employer decides not to hire based on criminal history, most fair chance laws require:
- Preliminary Notice: Provide written notice of the preliminary decision, include a copy of the background check report, identify the specific conviction(s) causing concern, and explain how the conviction relates to job duties or business necessity.
- Opportunity to Respond: Allow the applicant time to respond (typically 5-10 business days), accept evidence of inaccuracies, rehabilitation, or mitigating factors, and consider any information provided before making a final decision.
- Final Notice: If proceeding with adverse action, provide final written notice and include required notices under the Fair Credit Reporting Act.
Employers who follow these steps not only comply with legal requirements but typically make better hiring decisions by focusing on relevant factors rather than assumptions.
Record Sealing and Expungement: How They Affect Employment
Record sealing and expungement provide crucial mechanisms for limiting the impact of past criminal records on employment opportunities. These legal remedies can make a significant difference in job searches by legally allowing you to answer “no” to questions about criminal history in many circumstances.
While these terms are sometimes used interchangeably, they represent different legal remedies with different effects. Record sealing makes records inaccessible to the general public, though they typically remain visible to law enforcement and some government agencies. Expungement is a more complete remedy that treats the record as if it never existed, often allowing individuals to legally deny the existence of the expunged record.
The availability and effect of these remedies vary significantly by state. Some states have very limited expungement options, while others have expanded opportunities in recent years.
In response to growing recognition of the collateral consequences of criminal records, many states have expanded their record-clearing laws in recent years:
- Clean Slate Laws: States including Pennsylvania, Utah, Michigan, Connecticut, and California have implemented automatic record-clearing for eligible offenses after a waiting period
- Expanded Eligibility: Many states have increased the types of offenses eligible for expungement or sealing
- Reduced Waiting Periods: Several states have shortened the time people must wait before applying for relief
- Marijuana-Specific Relief: Following legalization or decriminalization, many states have created processes to expunge prior marijuana convictions
When records are successfully sealed or expunged, in most circumstances, you can legally answer “no” when asked about criminal history on job applications if the questions don’t specifically exempt expunged records. Most commercial background checks will not reveal sealed or expunged records, though there are sometimes exceptions for certain regulated industries.
Even with an expungement or sealing, exceptions may exist for certain positions, particularly in law enforcement, education, or positions working with vulnerable populations. It’s important to understand the specific protections in your state.
Industry-Specific Considerations for Criminal Records
The impact of criminal records on employment opportunities varies significantly across industries. Understanding these variations can help you target your job search toward sectors with more accessible pathways and navigate industry-specific challenges.
Healthcare
The healthcare industry has traditionally maintained strict policies regarding criminal records due to concerns about patient safety. However, nuanced approaches are emerging.
Federal regulations permanently disqualify individuals with certain convictions from long-term care facilities, and state licensing boards maintain specific restrictions for various healthcare roles. However, some states have implemented “direct relationship” requirements, where only convictions directly related to job duties can be considered.
When seeking healthcare employment, consider focusing on positions without direct patient care responsibilities initially, looking into allied health fields with less restrictive licensing requirements, preparing documentation of rehabilitation and relevant training, and exploring positions with healthcare organizations affiliated with re-entry programs.
Financial Services
The financial sector maintains significant restrictions due to federal regulations and concern about financial crimes. FDIC regulations restrict employment for those with certain dishonesty, breach of trust, or money laundering convictions. However, 2020 amendments to Section 19 created de minimis exceptions for minor offenses, and some financial institutions have created second chance programs for technology and operations roles.
Consider focusing on roles not directly involved in handling funds or financial transactions, exploring technology, operations, or administrative positions within financial institutions, and targeting smaller institutions or credit unions which may have more flexible approaches.
Technology
The technology sector generally offers more accessible opportunities for people with criminal records. Few regulatory barriers exist for most technology positions, industry culture often emphasizes skills and abilities over background, and remote work opportunities provide additional pathways.
Many major tech companies have explicitly adopted fair chance hiring policies, coding bootcamps specifically designed for formerly incarcerated individuals have emerged, and the shortage of technical talent has encouraged more inclusive hiring practices.
Consider developing demonstrable technical skills through bootcamps, certifications, or self-directed learning, building a portfolio of projects to showcase abilities, and targeting smaller companies and startups, which often have less rigid hiring processes.
Manufacturing and Construction
These industries have traditionally offered accessible opportunities for people with records. Few regulatory barriers exist for most positions, skills-based hiring is common practice, and apprenticeship programs provide structured entry pathways.
Labor shortages have created increased opportunities, many employers have formed partnerships with reentry organizations, and vocational training programs often include placement assistance.
Consider obtaining relevant certifications and safety training, exploring apprenticeship programs with structured career paths, and emphasizing relevant skills and reliability in applications.
Understanding these industry variations can help you target your job search strategically while preparing to address potential concerns about your background in a proactive manner.
Rehabilitation and Redemption: Making Your Case to Employers
When applying for jobs with a criminal record, proactively addressing your history and demonstrating rehabilitation can significantly improve your chances of success. The following strategies can help you effectively present yourself to potential employers.
Preparing Your Narrative
Developing a clear, honest explanation of your past and your journey since then is essential. Take responsibility without making excuses while providing context that helps employers understand the circumstances. Focus on what you’ve learned and how you’ve grown from the experience.
Highlight the positive changes you’ve made since the conviction and connect your journey to work-relevant qualities like perseverance, accountability, and personal growth. Keep it concise and forward-looking, spending more time discussing your present circumstances and future goals than your past mistakes.
Practice delivering this narrative confidently and consistently. Being prepared reduces anxiety and helps you present yourself effectively when the topic arises.
Documenting Evidence of Rehabilitation
Supporting your narrative with concrete evidence strengthens your case significantly. Consider collecting:
- Certificates of rehabilitation or good conduct available in some states
- Educational achievements including degrees, certifications, or vocational training
- Employment history showing stability and positive references since the conviction
- Volunteer work demonstrating community involvement and character
- Letters of recommendation from employers, teachers, community leaders, or probation officers
- Evidence of treatment completion for relevant convictions
- Documentation of legal compliance such as successful completion of probation or parole
Organizing these materials in a professional portfolio that you can reference during interviews or attach to applications (when appropriate) demonstrates both rehabilitation and professionalism.
Leveraging Federal Bonding and Tax Credits
Two federal programs can make you more attractive to potential employers: the Federal Bonding Program and the Work Opportunity Tax Credit (WOTC).
The Federal Bonding Program provides fidelity bonds that serve as business insurance for employers who hire “at-risk” job applicants, including those with criminal records. These bonds protect employers against losses resulting from dishonest acts by covered employees at no cost to either the employer or employee.
The Work Opportunity Tax Credit (WOTC) provides significant tax incentives to employers who hire individuals from certain target groups, including ex-felons who are hired within one year of conviction or release. Tax credits range from $1,200 to $9,600 per qualified employee.
Being aware of these programs allows you to inform potential employers of financial incentives that can offset perceived risks.
Effective Interview Strategies
If your criminal record comes up during an interview process, be honest but brief, acknowledging your record truthfully without offering unnecessary details. Follow disclosure immediately with evidence of change, pivoting quickly from acknowledging the past to demonstrating rehabilitation.
After addressing your record, refocus the conversation on your skills and qualifications for the position. If your conviction might raise specific concerns for the position, acknowledge them and explain why they should no longer be worrisome.
When handled skillfully, addressing your record can actually demonstrate valuable qualities like honesty, accountability, resilience, and personal growth—attributes many employers value highly.
Targeting Fair Chance Employers
Many companies have explicitly committed to fair chance hiring practices. Focusing your job search on these employers can significantly improve your chances of success. Resources for identifying fair chance employers include the Fair Chance Business Pledge signatories, Ban the Box campaign resources, Second Chance Business Coalition members, and local reentry program employer partners.
These employers have already recognized the value that people with records can bring to their organizations and have established processes for fair assessment of candidates with criminal histories.
Filing a Complaint for Criminal Record Discrimination
If you believe you’ve experienced illegal discrimination based on your criminal record, several avenues exist for seeking legal remedies. Understanding the complaint processes and when to pursue them is crucial for protecting your rights.
When criminal record discrimination has a disparate impact based on race, color, national origin, or other protected characteristics, you may file a complaint with the Equal Employment Opportunity Commission (EEOC) or equivalent state agency.
The EEOC complaint process begins with filing a Charge of Discrimination within 180 days of the discriminatory act (extended to 300 days in states with their own anti-discrimination laws). The EEOC then investigates and determines whether there is “reasonable cause” to believe discrimination occurred. If reasonable cause is found, the EEOC attempts conciliation between the parties. If conciliation fails, the EEOC may litigate the case or issue a “right to sue” letter.
If an employer has violated specific Ban the Box or Fair Chance hiring laws, the complaint process depends on the enforcement mechanisms established in your jurisdiction. These might include state civil rights or labor agencies, local enforcement agencies, private right of action, or administrative fines.
If a background check was conducted improperly, you may have additional claims under the Fair Credit Reporting Act (FCRA), which governs employment background checks. Common FCRA violations include failure to provide proper disclosure, lack of written authorization, failure to provide pre-adverse action notice, insufficient time to dispute inaccuracies, failure to provide final adverse action notice, and reporting of prohibited information.
While some complaint processes are designed to be accessible without an attorney, legal representation can be valuable when the case involves complex legal theories, multiple legal claims exist, significant damages or remedies are potentially available, the employer is taking an aggressive stance, or you need assistance navigating procedural requirements or deadlines.
Many employment attorneys offer free initial consultations and may take strong cases on a contingency basis, where fees are paid only if you recover damages.
Conclusion: Advocating for Your Rights and Future
Criminal record discrimination remains a significant barrier to employment for millions of Americans, but the legal landscape is evolving rapidly toward more fair and rational approaches. Understanding and asserting your rights under these developing protections can make a crucial difference in your employment opportunities.
As we’ve explored, multiple legal frameworks may protect you from criminal record discrimination: Ban the Box and Fair Chance hiring laws, Title VII protections against disparate impact, record clearing remedies like expungement and sealing, background check protections under the FCRA, and industry-specific regulations and exceptions.
Beyond legal remedies, practical strategies for presenting yourself effectively to employers, documenting rehabilitation, and targeting receptive industries and companies can significantly improve your employment prospects. By combining knowledge of your legal rights with strategic job search approaches, you can overcome barriers that might otherwise seem insurmountable.
At Nisar Law Group, we’re committed to helping individuals with criminal records overcome employment discrimination and access opportunities for which they’re qualified. If you’re facing barriers to employment based on your criminal history, contact us for a consultation to discuss your specific situation and potential legal remedies.
The path forward may not always be straightforward, but with proper guidance and persistence, your past record need not define your future employment opportunities.
