There’s plenty of reasons why a person might be the subject of a background check. Whether it be for an educational, employment, or housing application, you’ll want to know that the information produced in a background check is an accurate reflection of your history. After all, in many employment positions, a hit on a background check can be grounds for dismissal, or can encourage employers to hire a competing applicant instead of you.
What exactly does a background check reveal, though?
A background check is a search of a person’s history intended to confirm the identity of said person and ascertain their criminal record, education and employment history, and any other activities from their past. Background checks may be conducted by private companies or by government agencies. For example, the Tennessee Bureau of Investigation’s “Tennessee Open Records Information Services” division will run a criminal history background check on a particular subject for just shy of thirty dollars. Government agencies, like the TBI, will source the information in their background check results from public records maintained by other government agencies, such as arrest records, court records, and more. Private companies are likely to use the same sources, although they may also refer to newspapers, online articles, or other non-government materials. Generally, the result of a background check is a reflection of your arrest records and any subsequent court records.
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What can I do to clean up my background check?
Unfortunately, many background checks will contain results for criminal offenses you were not convicted of. For example, a potential employer might not see that a domestic assault charge against you was dismissed, and might act under the assumption that you were actually convicted for this offense. In the case of dismissed charges or acquittals, it is vital that you contact the court with jurisdiction over your case to have those records expunged or sealed as quickly as possible. This will prevent any person running a background check on you from seeing any public, or government-maintained, record of that charge.
However, if your mugshot was posted by a private company, or if a news article was published about your case, you’ll have to reach out to that company to have the posting taken down. Most companies that post arrest records have a policy for taking down a posting for any dismissed charge upon request – however, you can always enlist the help of an attorney to ensure that the paper trail of your arrest has been fully erased.
Many people don’t realize that you can also expunge certain convictions. People with a relatively clean criminal record are often eligible to have certain misdemeanors and felonies expunged from their record after the passage of an amount of time prescribed by the law. We talk about the expungement process in Tennessee in depth in this blog. You can also reach out to Best & Brock by calling (423) 829-1055 or by filling out our online contact form to ask about your own expungement eligibility!
Do I have to explain my criminal record to an employer after a background check?
You should be prepared to be honest with an employer after a background check. While you’re not necessarily required to share the details of your previous case(s), you shouldn’t lie or attempt to hide information. If proceedings are still pending against you in court, be sure to tell the employer that you have not been convicted of the alleged offense. That being said, the employer may require you to disclose to them if/when you are convicted of said offense.
Can an employer refuse to hire me, or fire me, because of my criminal record? Under federal law, employers are legally permitted to consider criminal records when making a final hiring decision. In many states, there are limited protections in place for those who have been convicted of a crime and are seeking work. Tennessee, unfortunately, does not currently enforce any laws governing equal employment opportunity for individuals convicted of a crime.
The U.S. Equal Employment Opportunity Commission (EEOC) oversees enforcement of federal anti-discrimination laws in the workplace setting. The EEOC directs employers evaluating the criminal records of their applicants or employees to consider the nature and seriousness of the offense/crime, the time that has passed since the criminal offense or completion of the sentence, and the nature of the job before making an employment decision.
Consider the example of teachers, who are typically held to stringent standards as role models for children. Per the rules of the State Board of Education of Tennessee, the educator license of someone convicted of a felony, a narcotics-related offense, or certain other offenses may be revoked, suspended, and/or refused issuance or renewal. In other words, an individual convicted of possession of a controlled substance can be legally denied employment as an educator.
There can be critical differences between a person’s criminal record and their arrest record, though. The fact that someone has been arrested does not necessarily mean that they are guilty of a crime, since criminal defendants are considered innocent until proven guilty. In certain circumstances (such as when an applicant has been arrested but a judgment has not yet been reached in court as to their guilt), an employer may ask questions about an arrest in order to make a reasoned decision on if the conduct in question should impact their employment decision. However, employers should not refuse to hire someone simply because they have been arrested.
What do I do if information on my background check is incorrect?
The people and computers that run background check programs are known to make errors. If there is information in your background check that is not an accurate representation of your history, you should let your employer know as soon as possible. Then, reach out to the company or government agency conducting the background check to request a correction. Providing documentation to support the correction – e.g., a signed expungement application or a judgment – may speed up the process. Depending on the circumstances of the error and the disposition of the party responsible for it, you may ultimately need the help of an attorney to see the correction to fruition.
Background checks for employment purposes – including hiring, retention, promotion, and reassignment – must comply with the Fair Credit Reporting Act (FCRA). Employers are required to give employees or applicants notice that a background check is being made on them, to begin. Then, the employee or applicant is entitled to review the information compiled on them and dispute any inaccuracies. Perhaps most importantly, employers are supposed to inform employees and applicants when the information from their background check is used in employment decisions that affect them. Employers do not always follow these rules, though. Thankfully, this misconduct can be remedied. If employers are not compliant with FCRA requirements when conducting background checks on prospective or current employees, they may be subject to legal action.
What if I’m applying for a government job?
The state, county, or city you’re applying to work for, and departments within that government, might have specific rules about how criminal convictions will affect their employment decisions. Your application to work as a driver for the city’s garbage disposal service, for example, may be negatively impacted by a conviction for driving under the influence. However, having an arrest record or criminal record does not necessarily disqualify you from all government jobs. The impact of your background check on the employment decision at hand will typically depend on the type(s) of offense you’ve been found guilty of, how long it has been since these convictions, and the responsibilities of the position you’re applying for. Consider these factors, and research the hiring policy of the department in question, before you assume yourself to be discluded from a job or promotion.
As far as the federal government goes, federal employers are generally barred from asking whether you have a criminal history until after you’ve been extended a conditional job offer. This should at least help you get your foot in the door!
Trust the Best of the Best to Handle Your Case!
The team at Best & Brock has a broad range of experience pertinent to background checks. We can help you with expungement, records sealing, requesting court documents, preparing letters explaining your criminal record for potential or current employers, and more! When your future is on the line, you need the best of the best on your side. You need Best & Brock!
If you think an employer has unlawfully discriminated against you, you can seek legal remedy by filing a discrimination complaint with the EEOC office (or with the Fair Employment Practice Agency) in your area.
