DUI and Employment Background Checks
A DUI conviction, or even an impaired driving charge that does not end in a conviction, may negatively impact one's career, particularly if an offender holds a commercial driver's license (CDL) or is required to drive as part of his or her job.
An employer may choose to conduct background checks on current or prospective employees for any number of reasons, some more valid (and legal) than others. Depending on how the background check is conducted, it may expose a DUI charge or conviction. But the limits of an employer's ability to conduct such checks, and whether or not a DUI offense should be considered in a hiring (or firing) decision, is governed mostly by state laws.
Federal Restrictions on Background Checks
All states are subject to the provisions of the federal Fair Credit Reporting Act (FCRA), which applies to background checks performed by outside companies but not those conducted in-house. While the FCRA prohibits the reporting of criminal arrests after a period of seven years, criminal convictions (including DUIs) may be reported indefinitely. Also, reporting restrictions imposed by the FCRA only apply to jobs with a yearly salary of $75,000 or less.
However, federal courts have often ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from barring employment of individuals with convictions unless they can prove a compelling business reason to do so. Still, this interpretation of the Civil Rights Act comes into conflict with some state laws. And most applicants have no way of knowing what goes on behind the scenes when they apply for a job.
State Laws Governing Background Checks
Most states allow employers to refuse employment to anyone with a conviction record and many even allow employers to refuse applicants with an arrest record, mainly due to a lack of regulations in this area.
Fourteen states have legal standards requiring an employer to prove the job relevance of a given conviction:
- New Mexico
- New York
But only Hawaii, Kansas, New York and Wisconsin apply these regulations to private employers as well.
California and eight other states offer certificates of rehabilitation for employment purposes to those convicted of a DUI or other crimes, lifting some barriers to employment. California Labor Code 432.7 states that employers cannot ask about an arrest that did not result in a conviction. And if you successfully complete a probation for a DUI in California, you can file a motion to withdraw your plea or set aside the verdict; this will show in your records that the case was dismissed.
Those running for public office or applying for a professional license in the state must disclose a DUI (or any conviction) from the past 10 years; the same is true for direct questions on an application regarding criminal convictions.
Most states require background checks for certain types of jobs, including anyone who works with children, the elderly or the disabled. This doesn't necessarily mean a DUI record will preclude such an applicant from consideration, but it could factor into an employer's hiring decision as a perceived character flaw. Also, many state and federal jobs require a background check; but this may depend on the kind of job, such as those requiring a security clearance.
Commercial drivers who commit a DUI on the job, or even in their personal vehicle, are prohibited from driving in a professional capacity for a certain period of time. As of 1999, convictions for major violations committed in a commercial vehicle (including a DUI) remain on one's CDL record for 55 years. See FindLaw's resources on commercial DUI and FMCSA regulations for more information about this.
How Background Checks are Conducted
Roughly 20 different types of information may be included in an official background check; these may include driving records, vehicle registration, criminal records, court records, character references, neighbor interviews and incarceration records. Some of this information may be gleaned from a pre-employment questionnaire or the job application itself. While most such questions are limited to whether or not the applicant has committed a felony, some states allow much broader questions about past charges for crimes.
As a rule of thumb, it's usually best to tell the truth; while employers may overlook the admittance of a DUI offense, being caught in a lie usually removes the applicant from consideration for the job.
But the internet has proven to be a powerful tool for more informal background checks of job candidates, including online public records and social networking sites such as Facebook. For example, a steadily increasing percentage of employers admit to using Facebook to review job candidates, which could turn up information about a DUI arrest that otherwise might not show up (maybe you or a friend commented on the arrest). In this respect, an applicant who otherwise does not consent to a background check may be subject to one without even knowing.
For more information on how employment background checks work, see FindLaw's resources on how employers should properly perform an employee background check.
Clearing Your DUI Record
While it's not always an option, often dependent on specific state regulations, a DUI offender may choose to expunge his or her record. Expungement is a court-ordered process which effectively "seals" a record of arrest or a criminal conviction.
Many states limit expungement to just arrests that do not result in a conviction. The charge or conviction is not completely "erased," per se, but is sealed for most purposes, including most employment-related background checks. For more information about expungement, see FindLaw's resources on expungement.
If you have specific DUI-related questions, it's important to speak to a lawyer familiar with the drunken driving laws in your jurisdiction. Most offer free consultations, so your first step should be to contact an experienced DUI attorney.