Employers can lawfully request that job applicants complete a criminal background check that is contingent to the job offer. This is lawful. However, job applicants who have been convicted or charged with a DUI should be knowledgeable about which records the potential employer can and cannot use in making a hiring decision. The following tracks important laws governing the use of criminal conviction records during the hiring process.
Mississippi State Law
Mississippi does not have any state laws prohibiting employers from conducting criminal background checks on potential employees. That is because Mississippi leaves this area of policy for the federal government to regulate. However, employers cannot have access to records that have been previously expunged. Furthermore, use of records from a certain cut-off date is unlawful and is a violation of the Mississippi Criminal Justice Reform Act. That is because Mississippi is one of a few states that has limited how far criminal background checks can go. In addition, the Reform Act makes all felonies eligible for expungement unless they fall into one of a few carved out exceptions. One of these exceptions include third, fourth, and subsequent DUI convictions. As a result, job applicants who have one DUI conviction that has been expunged should have an expectation that a potential employer will not have access to such records.
Laws such as the Fair Credit Reporting Act (FCRA) take the place of mandated Mississippi state laws or regulations on the subject. In general, the FCRA regulates the use and content of credit reports to protect consumer privacy and ensure the accuracy of the information they contain. The FCRA also restricts the information that may be included in a credit report, limits who may request a credit report and how the report may be used, and requires credit reporting agencies and those who use credit reports (such as employers and landlords) to follow specified procedures in dealing with consumers. Although the FCRA uses the words “credit report,” it also applies to criminal background checks that are conducted during the hiring process. For example, employers who conduct background checks without the applicant's consent have run afoul of the FCRA. Simlary, all potential employees who consent to a background check are entitled to receive a copy of the identical record for their reference.
How About Arrest Records?
Although there is no express prohibition in Mississippi against the use of arrest records to make a hiring decision, the State has a system that has made arrest records inaccessible. As such, the policy implication is that arrest records cannot be used by third parties in making decisions concerning individuals. If you were arrested for DUI, but was never convicted, your employer should not have access to your arrest records. Any improper access to these records is a violation of government rules.
Let Us Help with Your DUI Case
Usage of DUI arrest records or expunged DUI convictions is unlawful per Mississippi policy and regulations. Attorney James Robert Ferguson is a seasoned DUI attorney with experience advising individuals on hiring practices that are proper or improper as it related to past DUI crimes. Contact us to determine your rights in the matter.
See related blog posts:
Does Your Employer Care About Your DUI Conviction?
Your DUI Charge and Your Job