WHAT ARE FEDERAL PROTECTIONS FOR EMPLOYMENT?
Over the years employee rights have gained some traction, resulting in a series of important Federal laws that we rely on for job-related safety and benefits, as well as hiring practices and promotions.
Surveys show that the majority of employers do criminal background checks for some or all of their positions – approximately 92% according to one survey. There are some protections.
DO ANY FEDERAL LAWS PROVIDE PROTECTIONS TO THOSE WITH A CRIMINAL BACKGROUND?
Yes. There are two laws that provide some protection to job seekers with a criminal background:
- THE FAIR CREDIT REPORTING ACT
The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy in the reporting of criminal records. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, and even records that belong to someone else entirely
The Fair Credit Reporting Act imposes obligations on employers who request criminal background checks and on the firms that provide them.
Employers must:
- Get the applicant’s written consent ahead of time.
- Notify the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
- Inform the applicant after the employer makes a final decision not to hire him or her based on the information in the report.
Businesses that run background checks for employers also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date.
If you, as an applicant, feel that the contents of the report are wrong, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.
NOTE: It is important that before you apply for a job, you have already looked at your criminal record to determine if what you find is correct. You should also expunge any eligible records before applying for a job.
2. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination on the basis of sex, race, color, national origin, and religion in every aspect of employment – including screening practices and hiring practices. This directly relates to arrest and incarceration as rates are much higher for people of color and an employer who adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination. It generally applies to employers with 15 or more employees, including federal, state, and local governments.
The Equal Employment Opportunity Commission (EEOC) has created a guide that explains how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination.
In deciding whether a particular offense should be disqualifying, employers must consider:
- the nature and gravity of the criminal offense or conduct
- how much time has passed since the offense or sentence, and
- the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).
And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense
This is important! If you receive a letter with your criminal record attached asking you to explain the circumstances, be prepared to do so rather than give up. We will discuss this in another section.
3. MINIMUM WAGE – THE FAIR LABOR STANDARDS ACT
This act makes sure that American workers receive a minimum wage for their work. Since 2009, most private and public employers have had to pay their workers at least $7.25 per hour. It also ensures that workers who are non-exempt receive time-and-a-half for any overtime they perform.
The law offers special protections for minors as well. For non-agricultural positions, it limits the number of hours that children under the age of 16 can work and prohibits businesses from hiring those under 18 for certain high-risk jobs.
MARYLAND’S CURRENT MINIMUM WAGE IS $10.10 PER HOUR.
3. AFFORDABLE CARE ACT
When it was first passed in 2010, the Affordable Care Act makes health insurance a right for workers at most medium- and large-sized businesses.
The “Employer Shared Responsibility Payment” provision requires that companies with 50 or more full-time workers offer them a minimal level of health insurance – or pay a substantial penalty.
To qualify as a “full-time” employee, you must work at least 30 hours a week on average.
4. FAMILY AND MEDICAL LEAVE ACT
The federal Family and Medical Leave Act (FMLA) requires employers with at least 50 employees to give eligible employees up to 12 weeks of unpaid time off per year for illness and caregiving, and sometimes longer.
While you are on FMLA leave, your employer must continue your benefits.
You have the right to be reinstated when your leave is through.