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 could be relevant. However, what about jobs that do not require driving? This article overviews your rights and how previous DUI convictions affect employment eligibility.

Here’s an overview of your rights and how previous DUI convictions affect employment eligibility. If you are facing a DWI or DUI charge, contact a local and experienced DUI defense lawyer.

Employer Background Checks: What Are Your Rights?

Background checks on employee candidates have become routine in the hiring process. Whether an employer discriminates against you because they do not hire you because you have a criminal record, even though you are suited for the job, or maybe even the best person for the job, depends on a few factors.

Background check laws fall under three jurisdictions: federal, state, and municipal. The Federal Trade Commission enforces federal employment laws governing background checks. State employment commissions oversee state and local laws regarding the use of background checks during the pre-employment process.

Currently, no federal law prohibits potential employers from asking about applicants’ criminal histories, 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 eliminate the check box asking about criminal convictions.

The Fair Credit Reporting Act (FCRA) requires any employer using a credit report that 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. However, many states have put protections in place to restrict discrimination based on a criminal history of non-violent or low-level offenses.

Several U.S. states have enacted laws requiring public-sector employers to show that a criminal conviction is pertinent to the job before denying employment based on a background check. These regulations aim to make hiring practices fairer and reduce recidivism by giving individuals with criminal records better employment opportunities.

California, for instance, requires that public employers show a direct relationship between the conviction and the job duties. This means evaluating the nature of the crime, the time elapsed since the conviction, and the nature of the job for which the applicant is being considered. Similar laws exist in New York, where employers must consider factors like the severity of the offense, its relevance to the job, and evidence of rehabilitation.

Similarly, in Illinois, the Human Rights Act prohibits discrimination against applicants with criminal records unless there is a substantial relationship between the offense and the job or if hiring the individual would pose an unreasonable risk to property or public safety. Pennsylvania’s law requires employers to consider the nature of the job, the offense, and the applicant’s rehabilitation efforts.

Massachusetts follows suit with the “Ban the Box” law, preventing employers from inquiring about criminal history on initial job applications and obligating them to show that a conviction substantially relates to job functions. Hawaii also enforces a similar law, demanding relevance between the crime and job duties before denial.

These state laws reflect a broader movement towards fairer employment practices. They ensure that individuals are not unjustly excluded from the workforce due to past mistakes and emphasize the importance of second chances in the rehabilitation process.

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 five years and has been considered rehabilitated for 2 to 5 years after release from prison, probation, or parole. California Labor Code Section 432.7 also prevents prospective employers from asking about any arrest unless it results in a conviction.

How Background Checks are Conducted

The information obtained through background checks may differ depending on the type of information allowed by law or required for that particular position or company. Up to 20 different categories of information can be sought during background checks. The extent of the search may depend on the job category, such as whether it is for a government agency or requires a security clearance. The most common checks conduct searches about:

• Credit history and creditworthiness
• Criminal history
• Driving and motor vehicle records
• Previous employment and education verification
• 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.

Many possible sources of information are 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 criminal history is still a matter of record. The good news is that your record can be expunged or sealed if you meet certain conditions. 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, which 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 appear 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 and driving records.

A criminal offense can make it more difficult to find a job and limit your professional career and future employment options. Clearing your record or keeping a criminal arrest off any background check can help you return 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.