DUI and Employment Background Checks

Do potential employers have the right to know if you have been convicted of a DUI/DWI? For some jobs that involve driving. A prior drunk driving offense may seem relevant. However, other employers discriminate against applicants with a criminal record, even if that applicant is the best person for the job. Here's an overview of your rights and how previous DUI convictions can affect your employment eligibility.

Employer Background Checks: What Are Your Rights?

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 state employment commissions.

There is currently no federal law that prohibits potential employers from asking about the criminal histories of applicants, including arrests and convictions. 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 get rid of the check box asking about criminal convictions.

The Fair Credit Reporting Act (FCRA) requires any employer who is using a credit report that also includes a criminal record search to get written permission from the applicant first. The FCRA limits reporting on arrests after seven years. However, there is no federal limit on asking about prior convictions. Some applicants must also disclose any arrests or convictions for drunk driving offenses if they are running for office or trying to obtain a professional license.

DUI Criminal Records and Employment

Felony convictions may be permissible as valid reasons to deny an applicant but many states have put protections in place to restrict discrimination based on a criminal history of non-violent or low-level offenses. More than 35 states require public-sector employers to prove that the conviction is relevant to the job before denying employment based solely on a criminal background check. A number of states have also extended the ban-the-box/fair chance policy to private employers, including:

  • California
  • Connecticut
  • Hawaii
  • Illinois
  • Massachusetts
  • Minnesota
  • New Jersey
  • Vermont
  • Washington

Some states, including California, also provide certificates of rehabilitation for job seekers. In California, some felony offenses are eligible for rehabilitation after the person has resided in California for at least 5 years and has been considered rehabilitated for a period of 2 to 5 years after release from prison, probation, or parole. California Labor Code Section 432.7 also keeps prospective employers from asking about any arrest unless it resulted in a conviction.

How Background Checks are Conducted

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 extent of the search may depend on the category of job, such as whether it is for a government agency or requires a security clearance. The most common checks conduct searches pertaining to:

  • Credit reports
  • Criminal history
  • Driving records
  • Previous employment
  • Prior residency

Many states do not allow employers to ask job applicants about convictions on the initial application. Talk to your lawyer about the laws in your state regarding employment applications and what questions your prospective employer can ask. Applicants who have had their DUI records sealed or expunged can answer honestly that they have no criminal record of drinking and driving.

There are many possible sources of information available for conducting background checks for job applicants. Most organizations outsource the checks to a third party, such as a company that performs background checks or a private investigator. Many of the systems for searching background information can be done online, through government websites or databases like:

  • Public records searches
  • Criminal records, including arrests that did not result in a conviction
  • Court records
  • Credit reports
  • Driving records

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. Commercial drivers may not be able to obtain a commercial driver's license (CDL) with a DUI conviction on the job or while operating a company vehicle.

DUI Expungement

Even 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 or sealed. DUI expungement can erase any conviction from a public search, meaning no one will know you've had legal issues unless you tell them. Generally, a sealed DUI conviction only applies to your public record. Many states will still have a record of your arrest and conviction, and it may be considered if you are later arrested for another impaired driving charge.

The criteria for record sealing and expungement can vary from state to state. In general, to be considered for a criminal DUI expungement, you must demonstrate:

  • No further criminal convictions or arrests
  • Having your license reinstated and paying all fines or restitution
  • A clean driving record since the time of your initial conviction

Expungement may be limited. Some states do not allow for expunging DUI convictions. A DUI offense resulting in death or permanent injury may also not be eligible for expungement. DUI arrests that were drug-related may also be excluded.

Driving Records

A drunk driving criminal charge or conviction may also show up on your driving record. If an employment background check includes your motor vehicle report, it may show an impaired driving conviction, even if it does not appear on your public criminal background check. If you are concerned about arrest records for a DUI showing up on a background search, check both your criminal records and your driving records.

A criminal offense can make it more difficult to find a job and limit your professional career options. Clearing your record or keeping a criminal arrest off any background check can help you get back to normal after a one-time mistake. 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 drunk driving attorney to discuss your specific legal situation.