Generally speaking, access to federal criminal records is not available to private employers, with the exception of banks. However, private employers are more likely to secure criminal conviction records at the state level if the employer is able to prove a genuine need for the information. In many states, the employer would have to demonstrate that the incumbent would be in close contact with the public and that securing the conviction record would be in the best interest of the public. Another situation that would warrant the release of this information is if the incumbent's position could jeopardize the financial security of the company or the public image of the company. Obtaining criminal conviction records does not necessarily mean that this information can be used in making the hiring decision.
Some states have laws prohibiting discrimination against people who have a criminal record.
It's advisable to check with the state Department of Labor before securing the criminal record information. When verifying employment with a former employer, it is likely that the former employer only is willing to provide the dates of employment and the position of the employee. Litigation resulting from negative reference checks is on the rise. A defamation suit could result if a former employer gives out false and negative information about an applicant. Defamation is defined as the unprivileged publication of a false statement tending to harm the reputation of another person.