While federal law does not prohibit employers from asking about a potential employee's criminal history, many states and municipalities have laws that limit the use of criminal records when making employment decisions. Some states prohibit employers from asking about arrests that did not lead to convictions unless the charges are still pending. Some states only allow employers to ask about convictions if they are job-related or to take into account the seriousness of the crime and any rehabilitation efforts. Several states also have Ban-the-Box laws regarding when employers can ask about criminal history.
We've compiled the list below to help employers understand the state-by-state laws regarding the use of arrest and conviction records. This list is not all-inclusive but attempts to highlight major state legislative initiatives.
General guidance for employers when inquiring about criminal history
Regardless of where an individual resides or where the position an individual has been conditionally offered is located, employers should not inquire about or use:
- Any arrests, other than pending criminal charges, that did not result in a conviction.
- Any juvenile offense. OR
- Any record of any adult or juvenile arrest, detention or conviction that has been sealed, expunged, annulled, erased, pardoned, shielded, statutorily eradicated, set aside or otherwise dismissed by court order.
State and Municipality-specific restrictions regarding the use of arrest and conviction records when making hiring decisions.
Convictions are not an absolute bar to employment.
Any misdemeanor conviction for which both:
- Probation has been successfully completed or otherwise discharged and
- The case has been dismissed by a court.
- Any arrest, adjudication or conviction that occurred while an individual was subject to the process and jurisdiction of a juvenile court.
Any arrest or detention that did not result in a conviction. Any record of a referral to, or participation in, any pretrial or post-trial diversion program. Any pending charges for which entry into a diversion program has taken place and final disposition is pending. Any offenses other than a felony or misdemeanor, such as an infraction.
And any of the following marijuana-related convictions entered by the court more than 2 years ago: an infraction or a misdemeanor for unlawful possession of marijuana or a misdemeanor conviction for:
- Transportation or giving away of up to 28.5 grams of marijuana, other than concentrated cannabis, or the offering to transport or give away up to 28.5 grams of marijuana, other than concentrated cannabis;
- Possession of paraphernalia used to smoke marijuana;
- Being in a place with knowledge that marijuana was being used; or
- Being under the influence of marijuana.
San Francisco, California
Any information precluded by California state law (including the information described above for California) or any information relating to:
An arrest that did not lead to a conviction and is not the subject of an active pending criminal investigation or trial; participation in or completion of a diversion or a deferral of judgment program. A conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative (for example, under California Penal Code sections 1203.4, 1203.4a, or 1203.41). A conviction or any other determination or adjudication in the juvenile justice system, or a matter considered in or processed through the juvenile justice system. A conviction for which more than seven years has passed since the date of sentencing. An offense other than a felony or misdemeanor, such as an infraction; or a conviction that arises out of conduct that has been decriminalized since the date of sentencing (for example, the decriminalized conduct under California Health and Safety Code Sections 11362.1 and 11362.2).
Information regarding a record of civil or military disobedience, unless the record resulted in a plea of guilty or a conviction by a court of competent jurisdiction and any pending charges awaiting disposition.
Any arrest, criminal charge or conviction the records of which have been erased by a court based on sections 46b-146, 54-76o or 54-142a of the Connecticut General Statutes. Criminal records subject to erasure under these sections are:
- Records concerning a finding of delinquency or the fact that a child was a member of a family with service needs.
- An adjudication as a youthful offender.
- A criminal charge that has been dismissed or not prosecuted.
- Criminal charge for which the person was found not guilty, or a conviction for which the offender received an absolute pardon.
And any person whose criminal records have been judicially erased under one or more of these sections is deemed to have never been arrested as it applies to the particular proceedings that have been erased and may so swear under oath.
District of Columbia
Any arrest or criminal accusation that is not pending or did not result in a conviction.
Any verdict or plea of guilty or nolo contendere that was discharged by the court under Georgia's First Offender Act.
Any felony conviction older than 7 years, excluding any period of time when an individual was incarcerated, any misdemeanor conviction older than 5 years, excluding any period of time when an individual was incarcerated, or any crime which was subject to diversion or deferral.
An arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded under Section 5.2 of the Criminal Identification Act. 775 ILCS 5/2-103(A).
An applicant's criminal convictions cannot automatically be a bar to employment; rather the job, the time, nature and seriousness of the offense has to be taken into account.
Any record relating to prior arrests, criminal court appearances or convictions for which the record has been sealed and is on file with the Commissioner of Probation. Any prior arrests, court appearances and adjudications in cases of delinquency or as a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution. Any arrest, detention or disposition regarding any violation of law in which no conviction resulted. First-time misdemeanor convictions for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbance of the peace. Convictions for other misdemeanors where the date of conviction or the end of any period of incarceration was more than 3 years ago, unless there have been subsequent convictions within those 3 years, or any criminal record, or anything related to a criminal record, that has been sealed or expunged pursuant to chapter 276 of the Massachusetts General Laws.
Any misdemeanor arrests, detentions, or dispositions that did not result in conviction, including any pending misdemeanor charges.
Sealed juvenile record of arrest, custody, complaint, disposition, diversion, adjudication or sentence.
Certain first time drug offenses that were discharged or dismissed after the accused completed probation and any required treatment or educational programs that does not constitute a “conviction” for purposes of employment.
Any criminal proceeding that terminated in your favor, per section 160.50 of the New York Criminal Procedure Law:
- Any criminal proceeding that terminated in a “youthful offender adjudication,” as defined in section 720.35 of the New York Criminal Procedure Law.
- Any conviction for a “violation” that already has been sealed by the court, per section 160.55 of the New York Criminal Procedure Law.
- Any conviction that was sealed pursuant to section 160.58 of the New York Criminal Procedure Law, so DO NOT identify those offenses.
New York City, New York : Any of the information indicated for “New York ,” and also arrests or criminal accusations that did not result in a conviction (unless the arrest or criminal accusation is pending).
Any arrest or conviction for a misdemeanor drug violation as defined under Ohio Rev. Code 2925.11.
Any arrest not leading to a conviction, except where a crime is unresolved or charges are pending against an individual, any convictions that have been judicially voided or expunged, or any charges that have been resolved through the completion of a diversion or deferral of judgment program for offenses not involving physical harm or attempted physical harm to a person.
Convictions for summary offenses or any expunged convictions or criminal record information deemed limited access pursuant to 18 Pa. Cons. Stat. §§ 9121, 9122.1, or 9122.2.
Philadelphia, Pennsylvania: any of the information indicated for “Pennsylvania ,” and also information convictions that are older than 7 years, excluding any period of time when an individual was incarcerated.
Any arrest, criminal charge, or conviction for possession of marijuana under Va. Code §18.2-250.1.
Any conviction entered by the court more than 10 years ago unless some period of incarceration resulting from that conviction took place within the last 10 years or any vacated records.
Any felony convictions that were reduced to a misdemeanor.
Convictions can only be considered if the offenses are substantially related to the job.
Madison, Wisconsin: any offense for which it has been over 3 years since the last date that any of the following occurred, an individual was placed on probation, paroled, released from incarceration, or paid a fine, and any arrest which is no longer pending and did not result in a conviction.
Orange Tree can ensure your backgrounds checks are compliant and up to date with relevant state and local laws.
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