Employment Exclusion Based on Past Criminal Convictions

One of the common questions that I get asked as a criminal defense attorney and employment discrimination attorney is how is a criminal conviction going to affect my future employment or my current employment. As we know Arizona is an at-will employment state which offers very few protections to employees. The only protections are those arising under federal and state law.

Recently the Equal Employment Opportunity Commission (“EEOC”) provided some guidance as to how criminal convictions can be used for background checks for employment. The EEOC guidance provides that felony conviction cannot automatically bar employment of an individual.   Additionally, the EEEOC discourages employers from even seeking information about arrests or prior convictions. The reasoning behind this guidance is that the EEOC asserts that arrest and incarceration rates are particularly high for minorities. An employment policy which prevents hiring of an applicant with a criminal record could have disparate impact on those minorities thus violating federal law. The EEOC guidance states that if an employer bases its decision on an arrest or conviction and that decision is challenged, the burden will be on the employer to prove that the policy or practice of the employer is job related to the position in question and consistent with business necessity.  If the employer can satisfied this standard the applicant may still prevail if there is a less discriminatory alternative employment practice which would serve the employers goals which the employer refused to follow.

The EEOC goes on to offer some recommendations when considering applicants criminal convictions including using a screen process that includes the nature of the crime, the time elapsed since the offense, and the nature of the job considered. The EEOC also suggest that an employer provide opportunity for an individualized assessment for those people excluded by the screening.  This assessment is used to determine whether the policy is job-related and consistent with business necessity. An individual assessment occurs when an employer informs the applicant at he may be excluded because of past criminal contact, provide him with an opportunity to demonstrate exclusion does not apply to him, and consider whether the individuals additional information shows that the policy as applied is not job-related and consistent with business necessity.  If you feel that you have been wrongfully terminated because of a criminal conviction in your past or you failed to get a job because of a criminal conviction feel free to call my office set up a consultation at 480-398-1498 or visit me on my website at http://www.arizonaattorneykg.com/.