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Can an Employer Use Your Criminal Record?

By Stephanie Rabiner, Esq. on September 16, 2011 | Last updated on March 21, 2019

For a person with a criminal record--or even a prior arrest that never led to a conviction--making it through the hiring process can be very difficult and nerve-wracking.

Because background check laws vary by state, there's no definitive answer as to whether a potential employer can conduct a background check, ask about, or use an applicant's criminal record when making hiring decisions.

But as a general rule, most states allow employers to consider some portion of an applicant's criminal history, even without obtaining prior consent to conduct the investigation.

Additionally, the majority of state background check laws prohibit inquiry and use of arrests that did not result in convictions, and convictions that have been expunged or pardoned.

However, even these prohibitions are not ironclad. They may not apply to persons working in health care, for the government, or with sensitive populations.

Illinois also allows employers to seek information about whether an arrested person engaged in the underlying illegal conduct even if never convicted. Some states also offer more protection to those with criminal pasts.

In New York, for example, convictions can only be used when the criminal offense impacts a person's ability to perform their duties, or indicates that the applicant poses a legitimate danger to others and property.

With such a wide variation in background check laws, it's important that you do your research before you begin applying to jobs. Don't let a potential employer violate your rights or pressure you into divulging information that may harm your chances.

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