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Federal Occupational Restrictions Affecting People with Criminal Records

The first of many obstacles or issues a person has to address after getting out of prison is obtaining employment. Entering the job market with a criminal record, it would not be uncommon for a job applicant to wonder, “Where can I get hired?” It may be comforting to note that the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII of the Civil Rights Act to prohibit employment polices that exclude individuals solely on the basis of their conviction records. Read literally, Title VII prohibits private employers and state and local governments from discriminating in employment decisions (hiring, firing, promotions, etc.) on the basis of race, color, gender, national origin, or religion. Nevertheless, the EEOC has determined that discrimination on the basis of conviction records have a disparate impact on racial minorities. Thus, a criminal conviction cannot be the sole reason to disqualify a person from employment. If, however, the employer can also show a “business necessity” for refusing to hire a person with a conviction record, that decision is not illegal. Despite Title VII’s implicit prohibition against discrimination based on criminal history, there are a number of federal laws that either bar people with criminal records from holding a particular occupation or restrict their ability to do so. Convictions of offenses involving dishonesty, breach of trust, or money laundering disqualify an individual from working for institutions that are insured by the Federal Deposit Insurance Corporation. (See 12 U.S.C. § 1829 and our website summary of these laws, “People with Criminal Records Working in Financial Institutions: The Rules on FDIC Waivers.”) Federal law bars certain classes of felons from working in the insurance industry without having received permission from an insurance regulatory official. (See 18 U.S.C. § 1033(c)(2).) Certain classes of felons are barred, for 13 years after one’s conviction (or the end of one’s imprisonment if one is sentenced for a term of longer than 13 years) from holding any of several positions in a union or other organization that manages an employee benefit plan, including serving as an officer of the union or a director of the union’s governing board. (See 29 U.S.C. §§ 504, 1111.) Federal law also prohibits those convicted of certain crimes from providing healthcare services for which they will receive payment from Medicare, 42 U.S.C. § 1320a-7, or from working for the generic drug industry. (See 21 U.S.C. § 335a.) There is a federal law that requires criminal history background checks for those individuals who provide care for children. (See 42 U.S.C. § 13041.) In addition, the Federal Child Protection Act, 42 U.S.C. § 5119(a), authorizes states to enact statutes concerning the facilitation of criminal background checks of persons who work with children. It authorizes states to institute mandatory or voluntary fingerprinting of prospective employees in childcare fields in order to facilitate criminal background checks. The area of prisoner transportation (even private prisoner transportation) is federally regulated. 42 U.S.C. § 13726(b) sets “minimum standards for background checks and pre-employment drug testing for potential employees including requiring criminal background checks, to disqualify persons with a felony conviction or domestic violence conviction from employment.” The purpose of the act was to provide protection against risks to the public inherent in the transportation of violent prisoners and to assure the safety of those being transported. Finally, since September 11, 2001, numerous efforts have been made to increase aviation security. Federal laws requiring background checks have been passed to ensure the safety of travelers and airport employees. (See 49 U.S.C. § 44935; 49 U.S.C. § 44936.) These bars to employment are not generally thought to violate the law that prohibits most employers from denying employment solely on the basis of your criminal record because the positions regulated require that a great deal of trust be placed in the individual. Consequently, it is argued that any criminal conviction is job-related to the extent that it makes you less trustworthy, or that it creates an unreasonable risk on the job. Yet, while such federal laws bar those convicted of specific crimes from working for the federal government, federal law does not generally disqualify a person with a felony conviction from employment. It is important to note, however, that most laws that prohibit employers from hiring people with criminal records are state and local laws and rules. Thus, it is necessary to review relevant state and local laws to see what they mandate. For more information on pursuing a claim through the EEOC, please see http://www.eeoc.gov/