Criminal charges are “the gift that keeps on giving.” If you’ve been arrested, you may be worried about jail time, paying fines, and a driver’s license suspension. You might also be concerned about losing your job, whether your employer can ask about your criminal record, and if there are careers you won’t be eligible for if you have a criminal record.
You’re right to be concerned. Surveys show that more than 90% of employers perform a criminal records check when hiring for at least some positions. You might be worried that if an employer or prospective employer learns you have a criminal record, you’ll lose your job or won’t be hired. But there are limits to the questions an employer can ask, and state and federal laws offer some protection to people who have been charged with or convicted of a crime.
No state or federal laws prohibit an employer or potential employer from asking about your criminal history. However, firing someone or denying employment because of a criminal record could be considered employment discrimination. In some cases, an employer must wait until later in the hiring process before asking about criminal convictions.
Many employers ask you to submit to a background check as part of the job application process. Typically, an employer contracts with an outside party to conduct a pre-employment screening. The information that appears on the criminal record check will depend on the type of background check the potential employer requested. A criminal record check typically includes the following:
When it comes to your criminal history, it is critical to distinguish between arrests and convictions. If you were arrested but not convicted, you are innocent until proven guilty. The fact that you were arrested is not proof that you committed a crime.
Many people who work in Michigan are “at-will employees.” This means they can be fired at any time for any non-discriminatory reason. If your employer learns that you were charged with or convicted of a crime, they can fire you, as long as doing so does not violate any anti-discrimination laws.
Most employees receive an employee handbook when they are hired. Your employee handbook may require that you report an arrest or conviction. This is especially true for people who drive professionally and have a Commercial Driver’s License (CDL). If your job requires that you maintain a CDL and your driver’s license is suspended, you need to report that fact to your employer.
Other professions require that you report an arrest or conviction when you renew your license. For example, doctors, dentists, nurses, realtors, pharmacists, and other professionals who are licensed by the State of Michigan may be required to report an arrest or conviction when renewing their professional license.
If your arrest has no bearing on your job and you are not required to report the arrest or conviction, you have no legal or contractual obligation to report it. In these situations, your employer does not need to know about the arrest or conviction.
If there are errors in your background check, such as someone else’s criminal record or records that have been expunged, you have rights under the Fair Credit Reporting Act (FCRA). Before requesting a background check, an employer must obtain your consent ahead of time, must notify you if they intend to disqualify you from consideration based on the contents of the report, and must inform you if they make a decision not to hire you based on the information contained in the report. If you wish to dispute the contents of the report, the agency that conducted the report must conduct an investigation. If the report was incorrect, the agency must notify you and anyone else you received a copy.
If you have questions about how to explain your criminal record to your employer, Elmen Legal can help. In his years defending people accused of crimes, Robert Elmen frequently helps his clients explain criminal charges to an employer. He can help you determine whether you are required to report the arrest or conviction and offer suggestions on the best way to inform your employer. He will work to minimize the consequences of a criminal charge or conviction and has techniques and strategies to reduce your stress and the disruption to your life.
To learn more, call (734) 707-8915 or contact us online to schedule a confidential consultation to discuss your situation.
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