Accessing Arrest and Conviction Records
In North Carolina, it is legal for all private and most public employers to conduct inquiries about an applicant’s criminal history as part of the pre-employment background screening process; this includes reviewing conviction and arrest records. As we’ll explore, a handful of municipalities and counties have enacted limited ban-the-box laws, which must be considered to remain compliant when conducting background screening in certain jurisdictions.
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In the event that an employer chooses to review and weigh arrest records in a hiring decision, they must thoughtfully consider EEOC recommendations, as well as anti-discrimination guidelines presented by the FCRA and in Title VII of the Civil Rights Act. When a conviction record leads to the disqualification of a candidate for a position, this should be documented at each stage of the review/hiring process and be based on the relevancy of a conviction to the responsibilities of the job itself.
Employers may not access sealed records, or require candidates to disclose details regarding arrests or convictions that were expunged from their criminal record. In fact, employers are required to specifically inform candidates that they are under no obligation to share any information regarding expunged charges.
Ban the Box Policies – Municipal and County
North Carolina has not instituted a statewide ban-the-box law that uniformly denies employer access to arrest records. However, some municipalities and counties within the state have passed their own ban-the-box ordinances. For both municipal and county ordinances, restrictions only apply to public employers (e.g., county or city employers) and not private employers.
The following counties have instituted limited ban-the-box ordinances:
Buncombe, Cumberland, Durham, Forsyth, and Mecklenburg.
At the local level, the following municipalities have passed ban-the-box ordinances:
Asheville, Carrboro, Charlotte, Durham City, and Spring Lake.
Since the extent of these municipal and county ban-the-box regulations vary on a case-by-case basis, it’s important for public employers to stay aware of the distinctions that apply within their jurisdiction. Generally speaking, private employers may continue to conduct state-level criminal background screenings that include the review of arrest records as long as they remain in compliance with all local, state, and federal regulations to ensure fair hiring practices.
