Can businesses deny employment based on a misdemeanor conviction that has no connection to the type of employment desired?

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Can businesses deny employment based on a misdemeanor conviction that has no connection to the type of employment desired?

My son has a misdemeanor drug conviction from 3 years ago. He has twice been denied employment after a conditional offer. When they run the background check, they apologetically tell him that they cannot give him a start date due to his background check. This seems grossly unfair and punitive.

Asked on October 12, 2018 under Employment Labor Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

It is unfair, but it is legal. Employment in this nation is "employment at will": any employer may refuse to hire someone for any reason not specifically made illegal. While certain kinds of discrimination--principally based on race, color, national origin, sex, age 40 or over, religion, or disability--have been made illegal, there is no law saying that an employer can't "discriminate" against or refuse to hire someone due to a criminal background. Employers may use a criminal history, even a minor or old one, as grounds to refuse employment.
Your son should speak to a criminal defense attorney about whether it may be possible to expunge his criminal record. If it can be expunged, it will not come up in background checks.


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