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Criminal Background Checks and Employment

Denver, CO |

I have been working with a staffing company since November/December of 2012 (7 months). I had to fill out an application for the staffing agency, and do a face to face interview. I have a 3rd Degree Assault on my record (DV) that I disclosed this information both on my application and in my interview. Recently I was offered a position by the staffing agency and screen, tested to make sure I qualified for the position. I passed all assessments, etc. Was set to start tomorrow, but based solely on my background check was denied the position and told they have a flat ban on certain offenses, which means they should have never worked with me to begin with according to them. Based on info EEOC I am looking at complaints or a law suit for discrimination but want to check the validity of this.

From everything that I have read employers cannot base termination or employment solely on the results of a criminal background check, cannot have a "flat ban" policy automatically denying applicants employment, as well as rules they have to follow such as sending a copy of the background report to the applicant along with information regarding certain policies prior to any adverse actions, and so on. Most of this information is talking about people with felonies and not misdemeanors. I have not been able to get a job in 4 years due to the misdemeanor on my record and this feels like my right to work is being infringed upon.

Attorney Answers 2

  1. Whatever you have been reading is wrong - at least in Colorado. An employer can decide not to hire you for any reason except discrimination based on a protected class (race, religion, gender, disability, age, etc). Criminals are not a protected class. You have no valid discrimination claim based on being a convict.

    You can reach Harkess & Salter LLC at (303) 531-5380 or Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

  2. The EEOC has issued guidance regarding the proper use of criminal background checks. The short version is this: employers should not use an irrelevant criminal offense to deny employment. Employers may deny employment where the crime affects the work. For example, an employer may not deny a person a position on an assembly line because they have three speeding tickets, but may deny that person a job as a delivery driver. Your conviction is even more problematic because under every EEOC law, and employer is never required to offer a position to someone who is a threat to themselves or others. Your conviction for assault, even a domestic one, tends to show you are a threat to others and every employer has the right to maintain a safe work place. In addition, the EEOC guidance is not law and courts have been slow to adopt this interpretation in the first place. You would be better served by hiring lawyer to expunge or seal the DV conviction than to fight with potential employers. Here is a link to attorneys who do that type of work. Good luck.

    Answering this quetion does not establish an attorney client relation. The answer is for educational purposes only. You should consult an attorney for your circumstances.

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