Can you be fired from a job because of your criminal record

Recently on our legal forum a user asked, “I was recently fired from my job after six months due to my past criminal record. Is this legal, and is there any legal recourse to get my job back?”

The ability of many employers to fire certain employees for a variety of reasons is based on the concept of “employment at-will.” This doctrine specifies that most employers in most states, assuming there are no collective bargaining agreements or employment contracts which state otherwise, may fire an employee for a variety of reasons.

It’s important to know, however, that state laws regarding an employer’s right to fire at-will vary. For example, the state of Montana has a more limited view of the doctrine which allows employers to fire at-will only within the probationary period of employment (generally 6 months). After this period ends Montana employers must have good cause to fire an employee.

Exceptions to at-will termination

With all that said, there are some statutory and common law exceptions at both the state and federal level which limit the rights of an employer to fire employees. Common exceptions include the following:

• Discrimination

Most employers are barred from firing employees based on their race, nationality, religion, disability, age, pregnancy, and gender. Certain states have laws which also limit firing based solely on sexual orientation and marital status.

• Refusal to take a lie detector test and retaliation

Employers also do not have the right to fire their employees if the employee makes a claim of discrimination and the court does not find in their favor. Additionally, employees have the right to refuse to take lie detectors tests without retaliation.

Employers may also not fire an employee who is legally allowed to work in the U.S. but is terminated anyway for their alien status, who complained about an OSHA violation, who refused to commit an illegal act, who tried to exercise a legal employment right, or who complained about the unethical activities of their employer.

Note:

As mentioned above, these are generalized reasons many employers cannot fire an employer. Your particular state may have additional statutory protections for employees. Review your state’s laws for more information and talk to a lawyer if you have questions.

Expunging a criminal record

What do you do if your employer is well within their rights to fire you or refuse to hire you because of your criminal record?

The first step is to review whether you may have the right to expunge certain criminal charges from your record. Although this may not help you at your current job, it may make it easier to find employment in the future.

Expungement is the legal process of sealing your criminal arrest and conviction records. In some states, if you successfully expunge your criminal records, you may have the legal right to refuse to disclose the information to certain persons, including potential employers or landlords.

Although not all crimes can be expunged from your criminal record, you may have the right to expunge your record if you were arrested and released and not convicted of a crime. In this case you may be allowed to immediately petition to expunge your record following the release. If you are arrested, charged, but acquitted or pardoned, you may also qualify to have your records expunged.

There are also additional charges and convictions which your state may allow you to expunge if an Order of Supervision was entered and five years have passed since termination. These crimes may include retail theft, reckless driving, driving as an uninsured motorist, displaying false insurance, and certain criminal sexual abuse charges.

Review your state’s laws and talk to your lawyer if you have questions about whether your criminal charges can be expunged.

Protections for ex-offenders

A side note, public policy seems to moving in the direction to protect ex-criminal offenders. In fact, there is information in the EEOC Enforcement Guidance, titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” which offers certain protections for ex-offenders.

Some states have also passed certain laws which now restrict inquiries into and the use of criminal records for employment purposes.  With this in mind, it’s important to understand what an employer can and cannot do in your state or city with regards to inquiring about your criminal history prior to employment.

If you believe you have been discriminated against or fired illegally it’s important to discuss your claim with an employment attorney.

Bottom Line:

Barring any violation of federal, state, local ordinance, or law your employer may have the right to fire you for a criminal violation.