For millions of Americans with criminal records, the job search process is fraught with uncertainty. A central question looms over every application: Will my past mistakes prevent me from getting this job? While various laws protect against discrimination, employers can still legally consider criminal history in certain circumstances. Understanding when and how employers can lawfully factor in criminal history is essential for both job seekers navigating the application process and employers developing fair hiring practices.
At Nisar Law Group, we regularly help clients navigate this complex intersection of criminal history and employment rights. Our experience has shown that understanding the legitimate bases for considering criminal records 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 Legal Framework: Balancing Important Interests
The laws governing criminal record consideration in employment aim to balance several competing interests that affect real people and businesses:
- The right of individuals with records to move forward with their lives through stable employment
- Employers’ responsibility to maintain safe workplaces and mitigate liability risks
- The broader public interest in successful reintegration and reduced recidivism
- The protection of civil rights, particularly given the disproportionate impact of criminal justice involvement on communities of color
This balancing act has produced nuanced standards that vary by location but follow some consistent principles. Understanding these principles can help both employers and job seekers navigate the process with confidence.
When Criminal History Is Legitimately Job-Related
Employers may have valid reasons to consider certain convictions when they directly relate to specific job duties or risks. Courts and enforcement agencies recognize several situations where criminal history may be legally relevant.
Position-Specific Risk Factors
Some positions involve particular responsibilities or vulnerabilities that make related criminal history more relevant to hiring decisions:
Positions with Financial Responsibility
When a job involves handling money or financial assets, certain financial crimes may be legitimately considered. This includes roles that involve:
- Direct access to company funds or financial accounts
- Responsibility for significant financial transactions
- Handling sensitive customer financial information
- Cash management responsibilities
The connection must be specific and direct—a fraud conviction may be relevant for a position with financial oversight, but would rarely be relevant for a warehouse position without financial duties.
Positions Working with Vulnerable Populations
Roles that involve working with vulnerable individuals present special considerations. This includes:
- Childcare and education positions
- Healthcare roles involving direct patient care
- Services for elderly populations
- Support for people with disabilities
For these positions, certain violent or exploitative offenses may be relevant, while unrelated non-violent offenses typically would not be job-relevant. The assessment should focus on specific risks rather than general assumptions.
Positions Requiring Special Trust or Security
Some jobs require heightened trust or involve security considerations:
- Work with access to sensitive information or systems
- Positions at sensitive facilities or secure locations
- Roles involving home entry (repair services, delivery, etc.)
- Security positions or jobs with security responsibilities
Even here, the focus should remain on specific relevance—convictions that reasonably relate to the particular security concern, rather than any criminal history.
Positions with Access to Controlled Substances
Employers may consider recent drug-related offenses for positions that involve:
- Pharmaceutical roles with medication access
- Healthcare positions dispensing controlled substances
- Laboratory work with regulated chemicals
The recency of drug-related offenses and evidence of rehabilitation are particularly important factors in these contexts.
The Essential “Direct Relationship” Test
The key legal standard typically applied is whether there’s a “direct relationship” between the specific criminal history and the specific job duties. This critical test requires employers to consider:
- The specific elements of the offense (not just its category)
- How those elements relate to the actual responsibilities of the position
- Whether those elements suggest a genuine risk in the specific context of the job
For example, a DUI conviction may be directly related to a commercial driving position but would rarely be relevant for an office job. Similarly, a decade-old shoplifting conviction would typically not be directly related to a nursing position focused on patient care.
This “direct relationship” requirement prevents employers from implementing blanket exclusions while still allowing consideration of genuinely job-relevant history.
When Statutory Requirements Apply
Beyond the general principles of job-relatedness, certain positions have specific legal requirements regarding criminal history.
Federal Statutory Restrictions
Federal law restricts individuals with certain convictions from working in specific regulated positions:
- Banking and financial services: The Federal Deposit Insurance Act restricts individuals with convictions involving dishonesty, breach of trust, or money laundering from working in FDIC-insured institutions without a waiver
- Transportation security: TSA regulations limit access to secure areas of airports based on criminal history
- Port and maritime security: Similar restrictions apply to secure port areas
- Certain federal contracts: Some government contracting positions have statutory restrictions
When these federal restrictions apply, employers must consider the relevant criminal history, though waiver processes often exist for these prohibitions.
State Licensing Requirements
Many professions require state-issued licenses that have their own standards regarding criminal history:
- Healthcare professionals (doctors, nurses, pharmacists)
- Legal professionals (attorneys, paralegals)
- Financial service providers (brokers, insurance agents)
- Education and childcare professionals
- Security services and private investigators
The specific restrictions vary by state and profession. Importantly, many states have reformed their licensing laws in recent years to require individualized assessment rather than imposing categorical bans.
Public Safety Considerations
In limited circumstances, employers may exclude individuals whose criminal history indicates they would pose a “direct threat” that cannot be mitigated through reasonable measures. This standard applies when:
- The risk is significant and specific, not speculative
- The potential harm would be serious
- The likelihood of harm is substantial based on objective evidence
- The risk cannot be reduced through reasonable accommodations
This “direct threat” standard is applied narrowly and requires case-by-case assessment rather than general assumptions about people with criminal records.
Time Matters: The Diminishing Relevance of Old Convictions
The timing of criminal history is critically important in determining its relevance. Research consistently shows that after a period of remaining crime-free (typically 4-7 years), a person with a prior conviction presents no higher risk of future offending than someone with no record.
This “time-clean” principle is reflected in many laws and guidelines:
- The EEOC guidance explicitly recognizes the importance of time elapsed
- Many state fair chance laws establish specific lookback periods
- Some background check regulations restrict reporting of older convictions
- Courts increasingly consider timing when evaluating job-relatedness
This diminishing relevance means that older convictions require stronger justification for consideration than recent ones. A conviction from 15 years ago, with no subsequent criminal activity, would rarely be considered job-related for most positions.
Specific Time Limitations
Some jurisdictions have established clear time boundaries for considering criminal history:
- Massachusetts prohibits inquiries about misdemeanors older than 3 years and felonies older than 7 years
- Washington State creates a presumption that criminal history older than 10 years is not job-related
- Philadelphia’s ordinance establishes a 7-year limitation (excluding periods of incarceration)
- California restricts consumer reporting agencies from reporting convictions older than 7 years
These specific limitations provide clear guidance that both employers and job seekers can rely upon in these jurisdictions.
Individualized Assessment: The Core Requirement
Perhaps the most important principle in the legal consideration of criminal records is the requirement for individualized assessment. This approach rejects categorical exclusions in favor of case-by-case evaluation based on specific factors.
Key Factors for Proper Assessment
Most fair chance laws and the EEOC guidance recommend consideration of these specific factors:
Nature and Gravity of the Offense
- The specific conduct involved, not just the offense category
- Whether it was a misdemeanor or felony
- Whether it involved violence, dishonesty, or other elements relevant to the job
- The circumstances surrounding the offense
- The person’s age at the time of the offense
Time Elapsed Since the Offense
- How long ago the conviction occurred
- Time since release from incarceration, if applicable
- Employment history during the intervening period
- Whether there have been subsequent offenses
Nature of the Job Sought
- Specific job duties and responsibilities
- Work environment and level of supervision
- Access to sensitive items, information, or vulnerable persons
- Degree of trust and autonomy required
- Employment history since the conviction
- Educational achievements and training completed
- Community involvement and volunteer work
- Completion of relevant treatment or counseling programs
- References attesting to character and reliability
This individualized approach ensures that criminal history is considered in context rather than as an automatic disqualifier.
Documentation Requirements
Many fair chance laws require employers to document their assessment process:
- California requires a written assessment connecting specific convictions to specific job duties
- New York City requires analysis of each Article 23-A factor
- Several jurisdictions require retention of assessment records
This documentation helps ensure that employers conduct a meaningful evaluation rather than simply claiming to do so while maintaining blanket exclusions.
Addressing Negligent Hiring Concerns
Many employers cite concerns about negligent hiring liability when justifying broad criminal history exclusions. However, these concerns are often overstated and don’t justify blanket policies.
The Actual Legal Standard
Negligent hiring claims typically succeed only when all these elements are present:
- 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
- The employee’s conduct caused actual harm related to their history
Courts have increasingly recognized that following fair chance hiring practices—conducting individualized assessments based on job-relatedness—provides strong protection against negligent hiring claims.
Legal Protections for Employers
Many states have enacted liability shields that protect employers who follow appropriate hiring practices:
- Colorado provides immunity from negligent hiring claims based solely on hiring someone with a criminal record
- Massachusetts protects employers who relied on official criminal record information
- Minnesota creates a presumption of due care for employers who followed statutory requirements
- Texas limits liability for hiring applicants with criminal records in certain circumstances
These provisions recognize that categorical exclusion isn’t necessary for safety and may actually contradict public policy favoring reintegration.
Following Proper Procedures: Background Check Requirements
When employers do consider criminal history, they must follow specific procedural requirements under the Fair Credit Reporting Act (FCRA) if they use third-party background check companies.
FCRA Requirements
The FCRA imposes several key requirements:
- Providing written disclosure and obtaining authorization before conducting background checks
- Sending a “pre-adverse action notice” with a copy of the background report if considering adverse action
- Allowing reasonable time (typically 5-7 business days) to dispute inaccuracies
- Providing a “final adverse action notice” with specific information about rights and the reporting agency
These procedural protections ensure accuracy and give candidates an opportunity to correct errors or provide context for their history.
Additional State Requirements
Some states have enacted stricter background check regulations:
- California requires specific disclosure language and translations
- New York provides additional protections under its state FCRA equivalent
- Several states limit the types of records that can be reported
- Some jurisdictions require specific notices of rights under local fair chance laws
Failure to follow these procedural requirements can result in significant liability even when the underlying criminal history might otherwise be legitimately considered.
Best Practices for Fair and Legal Consideration
For employers seeking to comply with legal requirements while addressing legitimate safety concerns, these best practices offer a balanced approach:
1. Implement a Structured, Consistent Process
Develop written policies for criminal history consideration that identify specific offenses relevant to specific positions. Create standardized assessment forms incorporating the required factors, and ensure all hiring personnel receive proper training on these policies. Apply standards consistently across similar positions to prevent unconscious bias or inconsistent application.
2. Delay Criminal History Inquiries
Remove criminal history questions from initial applications and evaluate qualifications first, before considering criminal history. Conduct background checks only after preliminary qualification assessment, ideally waiting until the conditional offer stage when possible. This sequencing ensures candidates are first evaluated on their merits and qualifications.
3. Narrow Your Inquiry Scope
Limit inquiries to convictions (not arrests without conviction) and focus on recent history (typically 7 years or less for most positions). Target only conviction types relevant to the specific position and exclude sealed, expunged, or legally protected records. Consider only job-related elements of the criminal history, not the mere presence of any record.
4. Conduct Meaningful Individualized Assessments
Document the specific relationship between the conviction and job duties and consider all relevant factors (nature, time, job, rehabilitation). Allow candidates to provide context and evidence of rehabilitation, engaging in a genuine evaluation process rather than a superficial exercise. Maintain records of your assessment and reasoning to demonstrate compliance.
5. Provide Proper Notice and Opportunity to Respond
Inform candidates when criminal history may affect their application and provide specific information about concerning convictions. Allow reasonable time to respond (at least 5 business days) and genuinely consider additional information or context provided. Document your final decision-making process, including how you considered the candidate’s response.
Guidance for Job Seekers with Criminal Records
If you’re seeking employment with a criminal record, understanding when employers can legally consider your history helps you navigate the process more effectively:
Know Your Rights in Your Jurisdiction
Research local protections including Ban the Box or Fair Chance laws in your state and city, background check reporting limitations, and specific protections for certain types of records. Understand the required assessment and notice processes in your area and available complaint procedures if your rights are violated. This knowledge helps you recognize when an employer may be overstepping legal boundaries.
Be Prepared to Address Relevant History
For criminal history that employers may legally consider, prepare a brief, straightforward explanation that acknowledges responsibility while focusing on what you’ve learned and how you’ve changed. Emphasize relevant rehabilitation efforts, education, and positive work history. Practice delivering your explanation confidently and professionally, connecting your experience to workplace values like accountability and growth.
Document the Hiring Process
Keep records of when criminal history was requested during the hiring process, what information was requested and provided, and any explanations given for adverse decisions. Note whether proper notice and opportunity to respond were provided and keep copies of any background reports received. This documentation may be essential if you need to challenge unlawful practices.
Moving Toward Fair and Legal Consideration
The legal framework governing criminal history in employment continues to evolve toward more fair and rational approaches. While employers retain the ability to consider genuinely relevant criminal history, the clear trend favors individualized assessment over categorical exclusion.
For employers, this evolution represents an opportunity to access a broader talent pool while still addressing legitimate safety concerns through targeted, job-related assessment. For job seekers with criminal records, it offers increasing protection against arbitrary barriers to employment.
At Nisar Law Group, we help both employers and job seekers navigate these complex and evolving standards. If you have questions about the proper consideration of criminal history in employment—whether as an employer designing compliant policies or a job seeker facing potential discrimination—we’re here to provide the guidance you need. Contact us for a consultation to discuss your specific situation.
The path to truly fair consideration of criminal history requires balancing legitimate business needs with opportunity and redemption. When properly implemented, these legal frameworks can achieve both safety and second chances.
