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Your Criminal Past and Background Checks: Facts to Know

Published in Criminal Law on May 15, 2017.

Criminal Defense Attorney Serving all of Indianapolis

background checkSometimes it is a stupid mistake.

Other times a person has left prison or jail and is ready to start fresh.

A criminal conviction puts a red circle on one’s name when looking for jobs or even housing. While some consider it part of the penalty of committing a crime, others realize it is not necessarily fair for one mistake to ruin a person’s life for good.

Surveys show that employers are less likely to hire an employee with a criminal record. Furthermore, landlords are unlikely to rent a property to anyone with a criminal past.

Luckily, there are statewide and federal protections in place for those seeking employment with a criminal history.

Indiana’s Statutes for Criminal Background Checks and Employer Screenings

In July 2014, Indiana deployed a new rule for criminal background checks. This law specifically details what information criminal history background providers can give to employers.

Under Indiana Code Section 24-4-18-6, the laws for background checks are cleaned up and easier to understand. Now, the new law allows the reporting of non-conviction and pending records, only if the information is in the seven-year window. Therefore, any arrests or non-convictions after seven years cannot legally report per the Fair Credit Reporting Act and the Indiana Statute.

Also, the law limits reporting of felonies that were downgraded to misdemeanor offenses, and a new statutory cause of action was established for any background check company that knowingly reports false information.

Employers Can Ask About Criminal Backgrounds on Applications

Some states disallow asking applicants about a criminal past. Indiana does not.

Employers in the state can ask employees about criminal records, but cannot ask about records that have been sealed or restricted. Any job seeker with an expunged or sealed record can legally deny a history of criminal acts.

Indiana Requires Criminal Background Checks on Specific Positions

While not all employers engage in criminal background checks, Indiana requires certain positions to perform mandatory criminal background screenings.

The request for criminal history must come from the Indiana central repository and a limited check from the Federal Bureau of Investigations per Indiana Statute Section 10-13-3-28.

Federal Protections for Job Seekers with a Criminal Past

Two federal laws are in place to protect job seekers, and employers in Indiana must follow these laws as well as their state laws regarding background checks.

The Fair Credit Reporting Act – A Law Protecting  Against Inaccurate Records

Under the federal Fair Credit Reporting Act, accuracy is critical.

A criminal background check might include errors, such as:

  • Convictions previously expunged
  • Misclassification of crimes
  • Multiple listings of the same conviction
  • Failing to report an exoneration
  • Criminal records that belong to someone with a similar name, but not the applicant

Under the FCRA, employers and background screening firms are required to follow specific protocols, including:

  • Receiving consent from the applicant to conduct the criminal background check.
  • Telling the applicant if the employer will exclude him or her based on the results of the screen.
  • Give the employee a copy of the report if he or she is excluded due to a criminal history entry.
  • Inform the applicant during the final decision process if their criminal history played a role in that decision.

If the information is inaccurate, the firm providing that information must correct it. It is also their duty to ensure that they only provide accurate, factual records to employers.

Title VII: Discrimination from a Criminal Record

Under the Civil Rights Act of 1964, Title VII, employees and applicants are protected from any discrimination for any aspect of employment.

However, this does not mean an employer must hire someone with a background check. Instead, they cannot discriminate a particular race that is more likely to have criminal records – such as Latino or African American. Instead, the employer must have a blanket policy of zero tolerance for any criminal convictions or felonies, for example.

Employers must follow the guidelines presented by the Equal Employment Opportunity Commission (EEOC) when screening for criminal history and excluding applicants based on criminal history.

Bottom Line for Job Applicants: Know Your Rights

No matter what crime was committed in the past, whether misdemeanor or felony, anyone applies for a job in Indiana has rights.

Employers can see pending criminal cases and get an accurate picture of potential employees, but they cannot discriminate, and applicants have the right to know if their background plays a role in determining eligibility for a position. Furthermore, employers must have a clear and written policy about what criminal acts they prohibit, such as anyone with a felony record.

Avoiding the Problems of a Criminal Backgrounds – Hire an Attorney

If you or a loved one has been arrested for a crime in Indiana, you have rights. You can forgo the complications of a criminal record by hiring an attorney to represent your case. An attorney from Eskew Law may be able to get your charges dismissed or reduced to the point they do not affect your ability to seek employment in the future.

Schedule a consultation with an attorney from our law office today at 317-974-0177 or request more information about our criminal defense services online.

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