Criminal records, including citations and convictions, are a matter of public record. Employers who wish to research criminal records of applicants or current employees are free to do so. Short of lying, employees and applicants have few options to cover up their past criminal records, and private employers generally have the right to terminate them.
State Law Variance
Employment rights relating to criminal background information varies widely across the United States because the subject matter is covered by state, not federal law. This means that each state has its own set of rules on what employers can ask, research and act upon. To find out your rights as an employee or employer under your state's laws, contact the nondiscrimination agency that operates in your state.
One rule is resoundingly clear no matter what state you work in. If your criminal background includes convictions that are related in some way to the type of work that you perform, your employer has the right to terminate you. For example, if you have a criminal conviction for theft, fraud or embezzlement and you work at a bank where you handle money, your employer is probably well within its rights to terminate you for that reason. Similarly, if you been convicted of a child-related crime and you work at a daycare center, your employer not only has the right to terminate you, but is probably required to terminate you under state law.
Your employer should not have access to records relating to your arrest if the arrest did not lead to a criminal conviction. Federal and state law generally prohibit employers from obtaining or acting upon arrests without convictions. This is an important rule that supports the principle of "innocent until proven guilty." Without a conviction, you have not been found guilty, so your employer should not make a decision based on a mere arrest. If you are terminated because of an arrest, but you do not have a conviction, your employer may have discriminated against you and it's within your rights to file a claim with your state's nondiscrimination agency.
One way to protect yourself from possible termination based on a criminal history is to expunge your criminal record. State laws allow for expungement in various degrees and under various circumstances; check the specifics in your state. Generally, when you expunge your record you make your record hidden from public records. The only people or entities who can see your expunged crimes are criminal justice branches of state and federal government. If you have expunged your criminal record, your employer should not have access to it and, accordingly, should not be able to fire you. If an employer terminates based on an expunged crime, the employer may be practicing discrimination.
- "Your Rights in the Workplace"; Barbara Kate Repa; 2007
The Constitution Guru has worked as a writer and editor for "BYU Law Review" and "BYU Journal of Public Law." He is an experienced attorney with a law degree and a B.A. degree in history with an emphasis on U.S. Constitutional history, both earned at Brigham Young University.