background check

Is an Employer Allowed to Discriminate Based on Criminal History?

By Tom McKinney
NJ Employment Attorney

Whether because of a troubled period of your life or a single mistake you regret, you now have a criminal history. Maybe you’ve spent time in jail or completed hours of community service. Regardless, you have paid your debt to society and are looking for a fresh start. The question is whether you can get one.

You’d like that time in your life to be forgotten, but you’re worried that employers will judge you based on your criminal history, and you want to know whether it can be used against you. Here’s what you should know.

Federal Protections

Unfortunately, federal law doesn’t protect you from being discriminated against based on your criminal history. Criminal background isn’t a protected class, which means employers are free to act based on your history.

That said, there are some exceptions.

First, employers can’t use criminal history to determine whether you belong to another protected class. And because minorities are more likely to be arrested in some areas of the country, the EEOC has determined that using criminal history against some applicants is equivalent to using race against them.

Second, an employer is expected only to ask questions pertaining to the job you’re applying for — just because they can legally ask about your criminal history doesn’t mean it’s germane to your job. Sometimes, those questions cross the line, especially if they dig for unnecessary information.

However, if the job you’re applying for requires a security clearance or involves any type of security, your criminal history is quite clearly relevant.

New Jersey Protections

New Jersey has created limited protections for people with criminal histories.

The Opportunity to Compete Act (OCA) was enacted in 2015. This act prohibits an employer from preventing people with criminal histories from applying for a job and asking about criminal status until after the first interview.

However, the OCA doesn’t prevent them from eventually using criminal history as part of the process — it just lets people with a criminal history get their foot in the door. If the employer wants that information eventually, it’s legal for them to request it.

Curiously, while employers are prevented from soliciting for job openings with language indicating that they’ll refuse anyone with a record, they can still refuse to hire applicants with criminal histories. As such, the protections aren’t particularly robust.

Furthermore, these protections have limitations. If an employer is looking to fill a job in security, law enforcement, or similar fields, they’re exempt from the terms of the law. These terms also don’t apply to businesses with fewer than 15 employees.

How Employers Ask About Criminal Records

Typically, an employer won’t directly ask about your criminal history. Instead, they’re likely to conduct a background check on you. Due to the way the OCA works, this check can’t be completed until after your first interview. But that just might mean you interviewed for nothing.

A background check isn’t the only way to determine whether someone has a criminal history. Many employers informally check for this information. They may peruse your social media, visit websites that publicize information about criminal records, or look for unexplained gaps in your work history.

The OCA prevents this type of unofficial investigation, but it’s almost impossible to prove that an employer has carried out such research.

Consult an Employment Law Attorney

If you have a criminal history and are looking for work in New Jersey, consult an employment law attorney before communicating with or passing on any information to prospective employers. The legal team at NJ Employment Lawyers, LLC can protect your rights during the application process.

About the Author
Tom McKinney is a skilled employment law attorney with New Jersey Employment Lawyers LLC. He has a track record of success in all areas of employment law, including sexual harassment, discrimination, harassment, wrongful discharge, whistleblower claims and hostile work environment claims. Besides litigation, Tom handles severance agreements and severance package reviews/negotiations for over 100 people each year. If you have any questions regarding this blog, contact Tom here.