Advocacy Toolkit - Prohibit Inquiries about Arrests that Never Led to Conviction

The Unfair Roadblock: Despite the fact that the majority of Americans do not support access to records of arrests that never led to conviction for non-criminal justice purposes, the overwhelming majority of states allow employers to deny employment to applicants based solely on arrests that did not lead to conviction. In addition, many housing authorities and other non-criminal justice agencies also ask about and use arrests without convictions. Such practices flout the notion that one is innocent until proven guilty, which is the bedrock of our criminal justice system.

How To Remove The Roadblock: States should enact legislation that prohibits any inquiries about, consideration, or use of information about arrests that did not lead to conviction by employers, housing authorities and other non-law enforcement agencies.

This tool kit provides materials and information that advocates can use to encourage state legislatures to adopt those sensible reforms, including:

UNFAIRNESS OF ALLOWING INQUIRIES INTO ARREST RECORDS & WHAT NEEDS TO BE CHANGED

Despite the fact that the “presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law," most states do not have legislation that prohibits the use of arrest records in employment, housing and other decisions. In the absence of state legislation regulating such access, employers may use this information as a bar to employment, and housing authorities and landlords may deny housing. Thus, persons with records of arrests that never led to conviction can be branded with the same debilitating stigma that often harm people with past convictions, though these individuals have not been convicted of a crime.

The lifetime stigmatization of an arrest record will often hinder individuals from fully participating as active, tax-paying members of society. This roadblock can affect literally millions of people, since as many as 64 million Americans have arrest records, many of which never resulted in conviction.
States should enact legislation to prohibit employers, housing authorities and anyone else other than law-enforcement agencies from inquiring about or using arrests that never led to conviction.

• Thirty-six states allow all employers and occupational licensing agencies to inquire about, consider and make hiring decisions based on arrests that never led to a conviction.

• Ten states – California, Hawaii, Illinois, Massachusetts, Michigan, New York, Ohio, Rhode Island, Utah, and Wisconsin – prohibit public and private employers and occupational licensing agencies from using arrests that never led to conviction.

• Pennsylvania allows employers to ask about arrests that never led to conviction but prohibits them from utilizing that information when making a hiring decision.

• Arkansas and New Mexico limit both public employers and occupational licensing agencies from considering arrests. New Hampshire prohibits public employers from considering arrests. However, Arkansas, New Mexico and New Hampshire do not prohibit private employers from using arrests that did not lead to conviction.

FEDERAL GUIDELINES

State law predominately governs policies and legal standards that authorize employers and other non-criminal justice related agencies to access to criminal records. However, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII, the federal anti-discrimination statute that applies to private employers and state and local governments, has promulgated guidelines as to how information regarding arrests that never led to conviction should be utilized when making employment decisions. Under the EEOC’s guidelines, employers may not exclude people based upon arrests that did not lead to conviction unless there is a business justification. To prove a “business justification” an employer must show that the applicant engaged in the conduct for which he or she was arrested, and that the conduct is both job-related and fairly recent. The EEOC notes, however, that, a business justification can rarely be demonstrated for blanket, across-the-board exclusions on the basis of arrest records.

Coming soon, you will find more information in the Legal Action Center’s toolkit on Title VII.

Advocates should encourage state legislatures to enact legislation that prevents public and private employers and licensing agencies from inquiring about, considering, or using an applicant’s or employee’s record of arrests that never led to conviction. The goal of legislation should be to restore the accused to the status he or she occupied before the arrest and/or prosecution that never led to conviction, including assurance that such records will not be used against him or her in obtaining and maintaining employment, licensing, or housing. In passing such laws, advocates should promote legislation that clearly:

Prohibits employers from inquiring about or using information arrests that never led to conviction.
- Employers should be prohibited from making any inquiry about any arrest or criminal accusation that resulted in a dismissal or was in any other way resolved in favor of the individual.
- The prohibition must also include the use of arrest information, whether obtained directly from the employee or from another source. A law that simply prohibits employers from asking about arrests on employment applications but allows employers to obtain access to and use such information from an independent source is not nearly as effective in protecting individuals against discrimination.

Covers both private and public employers, as well as occupational licensing agencies.
Covers all aspects of employment.

Employers should be prohibited from using information pertaining to arrests that never led to conviction when making decisions concerning hiring, promotion, selection for training or apprenticeship, segregation, discharge, discipline or any other terms, conditions, or privileges of employment.

Makes explicit the effect of a termination of a criminal action in favor of the accused.
- The law should state explicitly that a person whose case is dismissed should be restored to the status he or she occupied before the arrest. Essentially, the individual should be viewed as a person who does not have a criminal history and should not be disqualified from receiving any benefit, employment, licensing, or housing.
Is comprehensive and consistent.

Laws that govern the accessibility and use of criminal history records including those that authorize criminal record checks and sealing or expungement of arrest records that did not lead to conviction, must be comprehensive and maintain consistency in definition and intent.

New York State’s has two model laws that explicitly provide protections to people with records of arrests that did not lead to conviction. One law nullifies the effect of a criminal record disposed of in favor of the accused and the other offers additional protection by limiting the use and consideration of these records by employers, licensing agencies and providers of credit or insurance. Click here for the text and brief description of the New York State laws.

If you are advocating for legislation that prohibits employers, occupational licensing authorities, and/or other agencies from gaining access to and using arrest records that never led to conviction, alerting grass roots allies and supporters and asking them to contact their legislators to support the legislation is an effective way to bring about change. Click here for a model Action Alert you can shape for your specific needs and use to seek grass roots support.

Click here for a model Sample Letter you can send along with the Action Alert to help your grass roots supporters write to their elected officials urging them to support legislation prohibiting employers, occupational licensing authorities, and/or other agencies from gaining access to and using arrest records that never led to conviction. Once again you can shape this Sample Letter to meet your specific needs.

U.S. DEPARTMENT OF JUSTICE, PUBLIC ATTITUDES TOWARD USES OF CRIMINAL HISTORY INFORMATION: A PRIVACY, TECHNOLOGY, AND CRIMINAL JUSTICE INFORMATION REPORT, NCJ 187663 (2001).

See "Survey of State Criminal History Information Systems, 2001: A Criminal Justice Information Policy Report." August 2003

CAL. ADMIN. CODE tit. 2, § 7287.4(d)(1)(A), (B); CAL. LABOR CODE §§ 432.7(f)(1), (2); CAL. PENAL CODE § 13203 (2003).

MASS. GEN. LAWS ANN. ch. 151B, § 4(9); MASS. REGS. CODE tit. 804, §§ 3.01, 3.02 (2003).

N.Y. EXEC. LAW § 296.16 (2003); N.Y. CRIM. PROC. LAW §§ 160.50, and 160.60 (2003); N.Y. CORRECT. LAW §§ 752-754 (2003).

18 PA. CONS. STAT. § 1925(a), (b) (2003). See also Cisco v. United Parcel Services, 476 A.2d 1340, 1343 (Pa. Super. 1984) (construing § 1925(b) to prohibit employer consideration of “any experience with the criminal justice system which falls short of a conviction”).