When individuals are looking for a new job and have previously been arrested, but the charges were dismissed, they often have many questions. Common ones include:

• “Can you be denied employment for dismissed charges?”
• “Can employers ask about dismissed charges?”, and
• Do background checks show arrests without convictions?”,among others.

If you are concerned about dismissed charges and their potential impact on employment, it is important to understand job applicants’ rights and legal protections. Know that job applicants do have rights. If employers unlawfully deny employment due to dismissed charges, they could be held accountable through legal action.

Can Employers Ask About Dismissed Charges? Know Your Rights

Job applicants have certain rights regarding information employers may want, including whether

or not they have dismissed charges on their record.

Legal Restrictions on Inquiring About Dismissed Charges

Can employers ask about dismissed charges? Only if they do it the right way. Laws, like the Fair Credit Reporting Act (FCRA), have definitive guidelines governing an employer’s ability to ask about dismissed charges during the hiring process. The Equal Employment Opportunity Commission (EEOC) also provides protections to applicants.

Asking about dismissed charges is typically done through a background check. For an employer to perform this, they must provide a written disclosure, and job applicants and employees need to give their written permission to proceed.

Inquiries about dismissed charges are often performed when relevant to the job. For example, if someone is applying for a job at a bank, the company will want to know if the individual has any history of theft.

Certain states and cities have put “ban the box” laws in place. These laws prohibit employers from asking about convictions on their job applications. Certain cities in Florida have these laws in place, including the City of Lakeland for city employees and Orange County for public employees.

How to Respond to Questions About Dismissed Charges

If a potential employer asks questions about dismissed charges, speak with them honestly about the situation. They will have received the facts in the reports, so being untruthful will not help the situation. You do not have to go into deep detail, but trying to deny an arrest that happened will not help. The fact of the matter is that the charges were dismissed.

Understanding your rights regarding FCRA guidelines, unfair hiring practices, and discrimination is critical.

Discrimination and Your Rights as a Job Applicant

If an employer takes an adverse action based on a protected characteristic under Title VII, an individual has a right to file a claim with the EEOC. This could occur if an employer has a history of hiring white individuals who have dismissed charges and not hiring African-American individuals who also have similarly dismissed charges. Legal action against the employer may be an option to hold the employer accountable.

Do Background Checks Show Arrests Without Convictions? The Facts

Information is power. Get the facts about background checks to understand what may happen regarding arrests without convictions.

What Information Appears on Background Checks

The type of information appearing on a background check will depend on the scope of what the employer wants to know, which often depends on the type of position you are applying for at the company or organization.

Criminal records, such as convictions and dismissed charges, will appear on a background check unless they have been officially expunged or sealed. Other information that appears includes work history, credit history, educational history, and driving records.

Certain items, such as a history of driver’s license suspensions, may have an impact, particularly if you are applying for a job where you would be driving a vehicle at work. Employers may also check sex offender registries.

How Arrests Without Convictions Impact Employment Opportunities

When considering, “Can an employer deny employment based on criminal history?” many people wonder how arrests without convictions, such as dismissed charges, will impact employment opportunities. For example, suppose you are attempting to get a job with the federal government. In that case, the background check is more intensive, and dismissed charges will be under much more scrutiny as they are primarily concerned with national security.

Private employers are primarily concerned about any financial liabilities. Even though private employers can see arrests without convictions on a background check, this does not necessarily mean it will be a deciding factor. However, dismissed charges may impact an employer’s decision if it is related to what the job entails.

Important note: If an arrest without a conviction is the reason that a hiring manager or other company representative decides not to give you a job, they are required under the provisions of the FCRA to contact you with the results of a background check. They must inform you if the dismissed charges were a determining factor before they make the final decision to take an adverse action against you. If they fail to do so, you may have a case against them for violating your rights under the FCRA.

Taking Control of Your Background Check Information

When you are in the market for a new job, take control of your background check information. If you are concerned about what it might include, be proactive and run a background check on yourself. There are multiple agencies online that provide these services.

You can see the results and be prepared for any potential conversations regarding dismissed charges to minimize possible adverse effects on your employment prospects. It is much easier to have these conversations if you know what topics could come up in the process of getting a job.

When you run a background check on yourself, you can also see if there are any mistakes in it, which could be with your credit check or other records. If you do discover an error, follow up with the relevant organization to start the process of getting it resolved.

Can an Employer Deny Employment Based on Criminal History? Legal Considerations 

Any job applicant should be aware of legal considerations if they are concerned about getting denied employment based on their criminal history.

Understanding When Criminal History Can Affect Employment Decisions

Generally, most employers are doing background checks to limit any future damage to their business. The main factor is the type of charge or charges on a record. So, if an individual has a criminal history relevant to their operations, it can affect employment decisions. For example, a manager at a large clothing retail store may be concerned if an individual applies for a job with theft arrests.

The dates of any arrests and dismissed charges can also factor into decision-making. Recent events will have more weight than those that happened many years ago.

Safety factors also can affect employment decisions. For example, suppose an individual has a criminal history of violence or is on a sex offender registry. In that case, employers will often take this into account, particularly if the individual would be working with vulnerable populations, such as children or the elderly.

Employer Obligations and Fair Hiring Practices

Even if you do have dismissed charges on your record, employers have obligations to follow the law, including conducting fair hiring practices.

First, it is important to remember that Florida is an “at-will” state. Meaning an employer can terminate an employee for any reason that is not illegal, which would include taking actions that would violate anti-discrimination laws. In an “at-will” state, employees can also quit for any reason as long as it does not violate an employment contract.

Job applicants have many rights in the hiring process, just as employees do after they have started working for the company. Even though employers can consider dismissed charges in their hiring decisions, they cannot discriminate based on any category protected under federal or state laws – and must abide by other laws regarding fair hiring practices or potentially face legal action.

Federal and State Laws Governing Criminal History and Employment

As mentioned above, the FCRA requires employers to let you know if they plan to run a background check and receive your written permission to do so. If not, this would be a violation.

Another parameter of the FCRA is that an employer must inform you if your criminal history was a deciding factor for not hiring you for a position before they make the ultimate decision not to hire you. This provides applicants with an opportunity to provide an explanation or context for any issues that come up in their background check. The employer also must tell you what charges were involved; if they fail, this would also violate the FCRA. Additionally, the FCRA prohibits background screening companies from reporting any arrest record or adverse non-conviction information older than seven years.

Title VII of the Civil Rights Act protects applicants and employees from discrimination in all aspects of employment, including the hiring process and screening practices.

The EEOC issues guidelines on screening techniques employers can screen applicants with criminal records, including recommendations to consider before denying a job applicant a position. These are:

• The gravity and nature of the charge.
• The amount of time passed since the charge.
• The nature of the job – including interaction with other employees and customers, amount of supervision, and any other relevant factors.

Under Chapter 435 of the Florida Statutes, Florida law allows employers to conduct background checks, including Level 1 and Level 2 checks.

Overcoming Employment Barriers Related to Dismissed Charges

If you have dismissed charges on your record, there are actions you can take to overcome potential employment barriers.

Expungement and Sealing of Criminal Records

Have you been concerned about the question, “Can you be denied employment for dismissed charges?” Consider getting your criminal records sealed or expunged, restricting a criminal charge from being seen by the public. It can be done for dismissed charges as well as certain convictions. Individuals are eligible if a prosecutor or judge completely dismisses the charges.

Convictions that are among the most serious charges, such as drug trafficking and aggravated assault, cannot be sealed.

An expungement packet is available on the Florida Department of Law Enforcement website, which should be downloaded and completed in full before petitioning the court. A certified disposition of the case needs to be obtained from the Clerk of Court in the county where the charges were filed. When all the information is completed and obtained, the petition can be filed and needs to be accompanied by a processing fee.

It is worthwhile going through the process. If you can get previously dismissed charges expunged or sealed from the public, this could potentially enhance your future career opportunities.

Moving Forward With Confidence After Dismissed Charges

Know that job applicants have rights under federal and state law. The FCRA and anti-discrimination laws provide strong protections for job applicants and employees, including applicants with dismissed charges on their records. Staying informed on legal developments and updates related to dismissed charges and employment is crucial. If your employment rights were violated, recourse through legal action may be recommended to get justice and compensation.

Take action today and take control of your future. Seek legal counsel with our FCRA attorneys at Wenzel Fenton Cabassa P.A. in regard to complex employment issues related to dismissed charges.

Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.