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Do potential employers have the right to know if you have been convicted of a DUI/DWI? Recent changes regarding what employers are allowed to learn about past arrests and convictions have led to confusion for business owners, HR departments, and those in the job market. Here's an overview of your rights and how previous DUI convictions can affect your employment eligibility.
Laws governing background checks fall under three jurisdictions: federal, state, and municipal. At the federal level, employment laws governing background checks are enforced by the Federal Trade Commission. State and local laws regarding the use of background checks during the pre-employment process are overseen by their own employment commissions.
There is currently no federal law that prohibits potential employers from asking about criminal histories of applicants. Laws in nearly half of the states preclude HR managers from asking about criminal history until after the interview process. Several states have passed laws requiring private sector employers to remove the box regarding criminal convictions from employment applications altogether.
The Fair Credit Reporting Act requires any employer who is using a credit report that also includes a criminal records search to get written permission from the applicant first. The FCRA limits reporting on arrests after seven years. However, there is no limit on asking about prior convictions. You must also disclose any arrests or convictions for drunk driving offenses if you are running for office or trying to obtain a professional license.
Felony convictions are permissible as valid reasons to pass over an applicant, but many states have put protections in place to restrict discrimination based on a criminal history of non-violent offenses. There are 14 states, including California, Florida, and New York, that require public employers to prove that the conviction is relevant to the job before denying employment based solely on a criminal background check. Four of these states take it a step further by extending that requirement to private sector employers as well. Those states are:
Eight states, including California, provide certificates of rehabilitation for job seekers. Those who are eligible are people with a history of DUI or other minor non-violent convictions and who have fulfilled their legal requirements. California Labor Code Section 432.7 keeps prospective employers from asking about any arrest unless it resulted in a conviction.
The information obtained through background checks may differ depending on the type of information that is allowed by law or required for that particular position or company. There can be up to 20 different categories of information sought during background checks; the breadth of the research depends on the caliber of the job, such as whether it is for a government agency or requires a security clearance. The most common checks conduct searches pertaining to:
As stated previously, many states do not allow employers to ask job applicants about convictions on the initial application. However, if you're asked about your criminal record during the interview process, it's best to be honest. Applicants who have had their DUI records sealed or expunged can answer honestly that they have no criminal record of drinking and driving.
Anyone who has been given permission to search your financial or legal background has many possible sources of information at their disposal. All but the largest organizations will usually hire a third party, such as a company that performs background checks or a private investigator. There are four main ways an investigator can obtain information about your history, many of which are available online through government websites or databases like:
One place that anyone can find information that may be used against you is on social media. Anything you post publicly is fair game. There is no permission needed nor legal recourse available to you, so be careful what you or your friends post.
While many state laws protect those who have put their past behind them and have gone on to lead productive lives, there are some types of jobs where a DUI conviction matters. In many states, you can't obtain a CDL license if you've ever had a DUI conviction on the job or while operating a company vehicle.
Unfortunately, long after you've paid your fines or done your time, your past criminal history is still a matter of record. The good news is that if you meet certain conditions, you can have your record expunged. DUI expungement erases any convictions, meaning no one will know you've had legal issues unless you choose to tell them. You should be aware that this only applies to your criminal record, however, as in many states, a drunk or impaired driving conviction will remain on your driving record.
The criteria can vary from state to state. In general, to be considered for a criminal DUI expungement, you must demonstrate three things:
These conditions are generally not applicable if you've been convicted of a DUI offense resulting in death or permanent injury. DUI arrests that were drug-related are often also excluded.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified drunk driving lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local drunk driving attorney to discuss your specific legal situation.