For millions of Americans with criminal records, finding stable employment often faces barriers from hiring practices that exclude anyone with a conviction history. These practices ignore the nature of the offense when it happened, or its relevance to the job. This widespread discrimination harms individuals rebuilding their lives and contributes to higher reoffending rates and economic problems.
At Nisar Law Group, we help clients overcome employment barriers due to past convictions. Understanding your legal rights can transform continuous rejection into meaningful job 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.
Understanding Criminal Record Barriers
Criminal record discrimination affects a huge portion of our population. About 70 million Americans have some type of criminal record—nearly one in three adults. The employment impact extends beyond individuals to affect families, communities, and the economy.
The numbers tell a troubling story: people with criminal records face unemployment rates up to five times higher than those without records. Even minor convictions can reduce employer callbacks by more than 50%. These effects hit communities of color hardest due to disparities in the criminal justice system.
This discrimination creates a harmful cycle. Without stable jobs, people with records experience higher rates of reoffending and continued financial hardship. Research consistently shows that steady employment strongly reduces reoffending, making employment barriers not just a personal problem but a public safety issue.
For employers, blanket bans against hiring people with records mean missing qualified talent. Studies show that employees with criminal records often show higher loyalty and lower turnover when given opportunities. Forward-thinking companies recognize that individual assessment rather than automatic exclusion leads to better hiring outcomes.
Ban the Box Laws Across America
“Ban the Box” laws represent one of the most important reforms addressing criminal record discrimination in hiring. These laws—named for the checkbox on job applications asking about criminal history—remove criminal history questions from the initial application process. This approach allows candidates to be evaluated on their qualifications before their record comes into play.
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 methods.
Key differences in Ban the Box laws include:
- Coverage: Some laws apply only to public employers, while others include government contractors and private employers
- Timing: Most laws delay background checks until after an initial interview or conditional offer
- Assessment process: Stronger laws require employers to consider the offense nature, time passed, and job relevance
- Notice requirements: Many laws make employers notify candidates and explain rejection decisions
- Prohibited information: Various laws restrict consideration of arrests, sealed records, or old misdemeanors
In California, 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 reject based on criminal history must assess each case individually, provide written reasons, and allow the applicant time to respond.
New York’s Fair Chance Act similarly prohibits criminal history questions until after extending a conditional offer. Employers must 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 created even stronger protections, with some imposing significant penalties for violations.
Understanding which laws apply in your area provides the foundation for challenging unfair practices. An employment attorney can help navigate these complex and sometimes overlapping protections.
EEOC Guidelines for Background Checks
While no federal law specifically prohibits 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 affect racial minorities.
In 2012, the EEOC issued comprehensive guidance on how employers should handle criminal background checks to avoid discriminatory impact. This guidance continues to influence employer practices and court decisions.
The EEOC’s framework requires employers using criminal history information to show that their policies are “job-related and consistent with business necessity.” To meet this standard, employers should:
- Consider the nature and seriousness of the offense
- Consider the time passed since the offense occurred
- Consider the nature of the job sought
- Provide individualized assessment
- Offer an opportunity to explain
The EEOC guidance forms the basis for disparate impact claims under Title VII. To pursue such a claim, you would need to show that an employer’s criminal record policy disproportionately excludes people of your protected class (typically established through statistics). You would also need to show that the policy isn’t job-related and consistent with business necessity, or that a less discriminatory alternative exists that would serve the employer’s legitimate goals.
These cases can be challenging to pursue because they often require statistical analysis and expert testimony. However, they remain an important tool in challenging systemic discrimination, especially at larger employers.
Legal Uses of Criminal History
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.
Job-Related Considerations
Employers may have valid reasons to consider certain convictions when they directly relate to job duties or business risks. Courts and enforcement agencies typically recognize several situations where criminal history may matter:
- 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 legal restrictions based on criminal history
- Positions with access to controlled substances where drug-related offenses may be relevant
- Jobs with security concerns at sensitive locations or with access to confidential information
Even in these situations, employers should still assess each person individually rather than applying automatic exclusions.
Legal Restrictions
Some state or federal laws explicitly prohibit individuals with certain convictions from holding specific positions. When these legal prohibitions exist, employers may need to exclude candidates with specified convictions. However, these restrictions should apply narrowly only to the positions actually covered by such regulations.
Liability Concerns
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 often appear 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 must have failed to conduct a reasonable investigation, and the employee’s conduct must have caused actual harm related to their history.
The best protection against negligent hiring claims isn’t automatic exclusion but thorough individualized assessment of candidates—exactly what fair chance hiring laws require.
Fair Chance Hiring Compliance
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.
Delaying Criminal History Questions
Under most Ban the Box laws, employers should:
- Remove criminal history questions from job applications
- Avoid asking about criminal history during initial interviews
- Postpone background checks until later in the hiring process
- Focus initial evaluations on qualifications, skills, and experience
This approach ensures candidates receive evaluation based on their merits first rather than getting automatically screened out because of criminal history.
Proper Background Check Procedures
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
- Follow state restrictions on reportable information
Many background reports contain errors or include information that legally shouldn’t factor into decisions. This includes arrests not resulting in conviction, expunged or sealed records, or very old minor offenses.
Individual Assessment Requirements
Before taking adverse action based on criminal history, employers should conduct an individualized assessment considering:
- The nature and seriousness of the offense
- Time elapsed since the offense
- The nature of the job sought
Additional relevant factors include:
- The person’s age when the offense occurred
- Evidence of rehabilitation or mitigating circumstances
- Employment history before and after the conviction
- Character references and other evidence of job fitness
Fair Response Process
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 rejection, 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 Clearing Options
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.
Sealing vs. Expungement
While these terms sometimes get 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 provides 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 offer very limited expungement options, while others have expanded opportunities in recent years.
Recent Legal Improvements
In response to the growing recognition of the lasting consequences of criminal records, many states have expanded their record-clearing laws recently:
- 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
- Shorter Waiting Periods: Several states have reduced 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
Employment Effects
When records get 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 mention expunged records. Most commercial background checks won’t reveal sealed or expunged records, though some exceptions exist for certain regulated industries.
Even with an expungement or sealing, exceptions may apply for certain positions, particularly in law enforcement, education, or positions working with vulnerable populations. Understanding the specific protections in your state is important.
Industry-Specific Considerations
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 Opportunities
The healthcare industry has traditionally maintained strict policies regarding criminal records due to patient safety concerns. However, more nuanced approaches have emerged.
Federal regulations permanently disqualify individuals with certain convictions from long-term care facilities. 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 affect decisions.
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
- Exploring positions with healthcare organizations affiliated with re-entry programs
Financial Sector Pathways
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 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
- Targeting smaller institutions or credit unions which may have more flexible approaches
Technology Field Options
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 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. 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
- 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 commonly occurs, and apprenticeship programs provide structured entry pathways.
Labor shortages have created increased opportunities. Many employers have formed partnerships with reentry organizations. Vocational training programs often include placement assistance.
Consider:
- Obtaining relevant certifications and safety training
- Exploring apprenticeship programs with structured career paths
- 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 proactively.
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.
Your Personal Story
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. 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.
Proof of Positive Change
Supporting your narrative with concrete evidence strengthens your case significantly. Consider collecting:
- Certificates of rehabilitation or good conduct are 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 demonstrates both rehabilitation and professionalism.
Government Incentive Programs
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 the employee.
The Work Opportunity Tax Credit (WOTC) offers significant tax incentives to employers who hire individuals from certain target groups, including ex-felons who get 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.
Interview Approaches
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 worry the employer
When handled skillfully, addressing your record can actually demonstrate valuable qualities like honesty, accountability, resilience, and personal growth—attributes many employers value highly.
Finding Supportive Employers
Many companies have explicitly committed to fair chance hiring practices. Focusing your job search on these employers can significantly improve your success chances. Resources for identifying fair chance employers include:
- Fair Chance Business Pledge signatories
- Ban the Box campaign resources
- Second Chance Business Coalition members
- 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.
Taking Legal Action
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.
EEOC Complaints
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 reasonable cause exists to believe discrimination occurred. If they find reasonable cause, the EEOC attempts to resolve the matter between the parties. If that fails, the EEOC may file a lawsuit or issue a “right to sue” letter.
Ban the Box Violations
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 (ability to file a lawsuit)
- Administrative fines
The specific procedures and remedies available vary by location.
Background Check Errors
If a background check contained errors or 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
- Reporting of prohibited information
These violations can provide additional legal remedies beyond discrimination claims.
When to Get Legal Help
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 takes an aggressive stance
- You need help 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.
Moving Forward
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
- 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 help 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.
