When you have a criminal record, finding a good, stable job can be a challenge. Many people are unsure how to navigate the job application process or how to tell an employer about an arrest. The seriousness of the felony or misdemeanor also plays a part — as does the difference between an arrest and a conviction.

It’s important to be aware of your employee rights after an arrest by understanding what employers can and cannot ask for in a background check.

What Type of Charges Should You Disclose to Your Employer?

Depending on the state, certain job applications may ask the applicant to disclose if they have been convicted of a felony. In Delaware, thanks to the Ban the Box movement, public employers can no longer request an applicant’s criminal history prior to an in-person interview. This doesn’t apply to private employers, though. So, if you have a criminal record and apply for a job in the private sector, you may need to be honest about your past.

It’s also crucial to properly read the questions on an application to ensure you are providing only the information requested. Some employers only ask about convictions and not arrests, while others only want to know about felonies and not misdemeanors. Others only care about specific felonies or misdemeanors.

For example, if you apply for a treasury job, the employer may ask if you have any past financial convictions, like embezzlement or theft, but may not be concerned with a DUI. Alternately, if you apply for a job in public transportation, requiring you to hold a valid driver’s license, your employer will likely need to know if you have any driving-based convictions.

Before Getting Hired

Labor laws vary from state to state, so it’s always a good idea to look up the specific regulations for your state. In Delaware, Title VII of the Civil Rights Act of 1964 states there is no restriction on employers asking employees about their criminal history or performing consensual background checks on potential employees, but employers cannot make a decision about your employment based on that alone.

Can employers ask about my arrest record?

Before getting hired, it’s good practice to disclose any relevant information regarding your criminal history if asked after the first in-person interview. Employers may also opt for a background check for potential hires, but they cannot do so without the applicant’s permission. They also cannot deny employment to an applicant based on the results of the background check without providing a valid reason that doesn’t violate Title VII.

After Getting Hired

Once you’ve secured employment, there is still a chance the employment offer could be rescinded. Background checks can take time to garner results, and it’s possible that you may be about to begin a job when the background check reveals a criminal record you didn’t mention. This is why it’s important to make sure you read the application carefully and answer honestly.

If your background check reveals that you provided false information, your job offer could be rescinded. Similarly, if you are employed and then convicted of a crime later, your job may be at risk, depending on the type of crime it was. For example, if your job requires you to drive, and you get a DUI, you will likely be unable to fulfill your job’s requirements, which could be a cause for termination.

How Long Does a Misdemeanor Stay on Your Record?

Misdemeanors are generally less serious than felonies, but they are still serious convictions that remain on your criminal record. Misdemeanors are permanent unless you can petition to have them expunged from your record. Therefore, misdemeanors will show up in background checks and, if you don’t disclose them beforehand, it may seem like you were purposely dishonest.

Does a DUI Need to Be Disclosed?

It’s important to read your employment contract to find out your company’s policy on disclosing misdemeanors. Depending on your profession and your contract, you may only need to disclose specific misdemeanors that may impact your ability to do your job. For example, a misdemeanor DUI and employment as a chauffeur won’t be a match, and your employer may require employees to disclose such convictions.

If your job requires you to drive, it’s generally a good idea to be upfront and honest with your employer if your license is suspended or limited. It will most likely be a requirement of your employment to avoid charges that would jeopardize the validity of your license.

When Should You Tell Your Employer About an Arrest?

Ideally, it’s best practice to inform your employer sooner rather than later if you’ve been arrested. This is especially crucial if you are currently employed because you may need to take time off work to attend court.

Talk to an Attorney Now

It’s also important to remember that an arrest is not the same thing as a conviction. An arrest alone will not necessarily lead to job termination.

Arrested vs. Charged

Getting arrested is not synonymous with being convicted of a crime. Someone who is arrested is taken into custody but is still considered innocent until proven guilty. Being charged means the prosecutor’s office has decided you should be charged with a crime.

A charge can be for serious felonies or less-serious misdemeanors. If you are found guilty of the charges, you are then sentenced to a punishment befitting the crime.

Employers usually cannot terminate you because of an arrest alone, but termination due to criminal charges is still possible.

Know Your Rights as an Employee

Title VII of the Civil Rights Act of 1964 outlines how to protect yourself as an employee by regulating what employers can and cannot do. It applies to employers as well as labor organizations and outlines crucial information for protecting yourself, such as:

• You cannot lose your job for filing a complaint against discrimination.
• Employers cannot discriminate based on race, gender, age or disability.
• Preferential treatment is prohibited, with specific exceptions.
• Any pre-employment tests must be graded fairly for all applicants.

There are also specific regulations for companies located on or near Native American reservations to help ensure everyone is given a fair opportunity for employment. Get in touch with an attorney today.