Consequently, the Commission has held and continues to hold that such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.
EEOC , No. See 15 U. However, convictions of any age may be reported. Additional notice and other procedural protections required by the FCRA also apply directly to an employer, as discussed in FTC advisory letters. Federal law now authorizes or requires criminal history background checks, and mandates disqualification based on certain convictions, for a wide variety of state-licensed occupations and employments.
Some of these regulatory schemes contain time limits or provide for administrative waiver, as described below. Starting with the USA Patriot Act, a progression of federal laws and regulations have been enacted to screen workers employed in the air, sea, and ground transportation industries. Although the laws themselves vary in specificity, by regulation and policy the Transportation Security Administration TSA has attempted to harmonize the different screening policies, though the Aviation and Transportation Security Act of imposes more stringent limits on airport employment than those applicable to maritime employees and commercial drivers.
Airport Employment. Major categories of workers covered by the ATSA include airport screeners, mechanics, flight attendants and pilots, fleet service workers, and workers handling commercial or passenger cargo in secured areas. TSA has proposed regulations to extend a separate level of screening to workers who handle cargo in unsecured areas. In addition, some misdemeanors may also be disqualifying. Baer , F. In contrast to the Hazmat regulations below , the TSA regulations make felony simple possession of a controlled substance a disqualifying offense also.
If there is no disposition, or if the disposition did not result in a conviction or in a finding of not guilty by reason of insanity of a disqualifying offense, the individual is not disqualified. Waiver : Unlike the regulations applicable to commercial drivers and maritime employees, the TSA regulations implementing the ATSA do not provide for waiver. Convicted means any plea of guilty or nolo contendere, or any finding of guilt, except when the finding of guilt is subsequently overturned on appeal, pardoned, or expunged.
In addition, where an individual is allowed to withdraw an original plea of guilty or nolo contendere and enter a plea of not guilty and the case is subsequently dismissed, the individual is no longer considered to have a conviction for purposes of this subchapter.
Hazmat Licenses for Commercial Drivers. Unlike the ATSA, the Patriot Act does not list disqualifying offenses or impose any time limits on their consideration. These offenses, whether felonies or misdemeanors, will be considered disqualifying no matter how dated. An applicant disqualified because of a criminal offense may within 60 days appeal that determination within the TSA and, if unsuccessful, then seek review in a court of appeals. If he does not appeal within 60 days, or if his administrative appeal is unsuccessful, then the Initial Determination of Threat Assessment becomes a Final Determination.
Should his waiver request be denied, he may seek review of that decision as well, first before an Administrative Law Judge, then before the Deputy Administrator, and then by petitioning a court of appeals for review. As to pardoned or expunged convictions, see infra. Maritime Employees. Privacy protections are written into the law — individual employers may be informed only of the results. See 46 U. The TSA must also establish an appeals process that requires notice and a hearing.
For all maritime and land transportation security employments subject to regulation by TSA, the rules on expunged and pardoned offenses are contained in 49 C.
Examples of restrictions specifically mentioned in TSA advisory memoranda include limitations on ownership of a firearm, and limitations on employment as law enforcement officer, teacher, or health care provider. See id. If a record fails to indicate the disposition of an arrest, the credentialing authority may take into account convictions outside the year period in making a suitability determination. Procedures on expungements vary from state to state, and may change at any time.
Therefore, TSA hopes to avoid inconsistent application of the law against hazmat drivers by providing the new definition. Thus pardons and some expungements will be given effect even prior to the waiver stage. In , the FDIC issued regulations, effective September 21, , codifying which criminal records require a waiver and which do not. Somewhat anomalously, the waiver requirement extends to all drug crimes except for simple possession, unless the offense is de minimis see below.
The regulation also sets out criteria under which several other minor convictions insufficient funds checks, small-dollar simple theft, false ID will be regarded as de minimis. Finally, convictions that have been pardoned do require a waiver. The National H. Network reports that institutions rarely seek a waiver, except for higher level positions when the candidate is someone the institution really wants to hire.
See www. See Id. Other banking agencies charged with administering laws regulating real estate and mortgage brokerage licensing may defer to FDIC for waivers. Care Providers for Vulnerable Populations. Federal law authorizes or requires states to conduct background checks for a variety of employments affecting vulnerable populations.
Child care: Criminal history background checks are required for individuals who provide care for children in any Federal agency or facility operated by the Federal government.
It authorizes states to institute mandatory or voluntary fingerprinting of prospective employees in childcare fields in order to facilitate criminal background checks.
Labor organizations. Federal defense contractors. Mortgage Lending. See U. Mitchell, F. Courts of Appeal in the First, Third, Sixth, Eighth, and Ninth Circuits, as well as some district courts in the Eleventh Circuit, do not allow expungements based on equitable grounds i.
Meyer, F. Coloian, F. Sumner, F. Federal U. Circuits allow judicial expungements for equitable purposes under extraordinary circumstances. Flowers, F. What you really want if you have a federal felony conviction, is felony record expungement, if you can get it. F elony record expungement is much preferable because when your record is expunged, it is as if the conviction never existed in the first place. Your criminal record is essentially thrown away.
Unfortunately, expunging federal felony records is not possible in most cases. Under 18 U. December 8. November 8. October 8. September 8. August 7. July 7. June 8. May 8. April 8. September 7. August 8. July 8. June 6. May 3. March 3. January 3. December 2. November 2. August 1. July 5. June 1.
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