Arrest and Conviction Record
This page was formerly named ERD-7609-P
State law protects workers from workplace discrimination because of arrest or conviction record under certain circumstances. However, it is not employment discrimination under the law when an employee's arrest or conviction is substantially related to the employment.
The statute of limitations for filing a complaint is 300 days from the date the action was taken or the individual was made aware the action was taken.
What is an arrest or conviction record?
An arrest record is information that a person has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense. A conviction record is information indicating that a person has been convicted of any felony, misdemeanor or other offense, been judged delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned or paroled by any law enforcement or military authority.
What does it mean for an arrest or conviction to be substantially related to the employment?
An arrest or conviction is "substantially related" to a job when there is some overlap between the circumstances of the job and the circumstances of the offense. For example, a theft related conviction is substantially related to a cashier position. A drunk driving offense is substantially related to a position as a truck driver. However, a drunk driving offense is probably not substantially related to a cashier position.
What actions are covered?
When an individual's arrest or conviction record motivates the adverse decision, it becomes unlawful discrimination. Specifically, the law prohibits discrimination in recruitment and hiring, job assignments, pay, leave or benefits, promotion, licensing or union membership, training, layoff and firing, harassment and other employment related actions.
Frequently Asked Questions
Can an employer discharge a current employee because of a pending criminal charge?
No. An employer may, however, suspend an employee, if the offense-giving rise to the pending criminal charge is substantially related to the circumstances of the particular job or licensed activity.
Can an employer refuse to hire a person because of a record of arrest that did not lead to conviction?
No. An employer is not allowed to ask about arrests, other than pending charges.
What can an employer ask regarding arrest and conviction records?
An employer may ask whether an applicant has any pending charges or convictions, as long as the employer makes it clear that these will only be given consideration if the offenses are substantially related to the particular job. An employer cannot, legally, make a rule that no persons with conviction records will be employed. Each job and record must be considered individually.
Can an employer refuse to hire an applicant because of a lengthy record of convictions or conviction for a crime the employer finds upsetting?
An employer may only refuse to hire a qualified applicant because of a conviction record for an offense that is substantially related to the circumstances of a particular job. Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.
What if an employer believes a pending charge or conviction is substantially related but the employee or applicant believes it is not?
In this situation, the employee or applicant may file a complaint and the Equal Rights Division will make a determination as to whether there is a substantial relationship, with either party having the right to appeal the decision.
Can an employer refuse to hire or discharge a person with a pending charge or conviction because other workers or customers don't want the person with a conviction there?
No. The law makes no provision for this type of problem. The employer must show that the conviction record is substantially related to the particular job. Co-worker or customer preference is not a consideration.
Is it a violation of the law if the applicant's conviction record is only a part of the reason for not being hired?
Yes. A conviction record that is not substantially related to that particular job should be given no consideration in the hiring process.
How should an applicant answer questions on an application regarding conviction record?
It is best to answer all questions on an application as honestly and fully as possible and to offer to explain the circumstances of the conviction to the employer.
Should an employer ask about the circumstances of a conviction during an interview?
Yes. An employer must obtain enough information to determine if the conviction record is substantially related to the job. If the employer decides there is a substantial relationship, employment may be refused but the employer must be prepared to defend the decision if the applicant believes there is not a substantial relationship and files a complaint.