Q: Is it illegal to ask job applicants about former arrests and convictions?

 

A: Caution is advised when inquiring about an applicant’s criminal history.

Asking about arrests violates laws put in place by the Equal Employment Opportunity Commission (EEOC) because arrests have a record of being biased against persons with protected statuses, specifically members of minority groups.

Asking about convictions is generally allowed. Whether this is done on the application or after an interview or conditional offer of employment may be affected by your local or state laws. Many states have passed “Ban the Box” laws that limit an employer’s rights to inquire into an applicant’s criminal history until after a conditional job offer has been made.

If a candidate is rejected due to a prior conviction, there must be a legitimate business reason. Without such reason, you will be in violation of the EEOC rules.

The legitimate business reason may be based on the following three factors:

  • Type and severity of the crime
  • How long ago the conviction took place
  • How the conviction relates to the position applied for

If the job applicant intentionally misrepresents a conviction record, it may be legitimate to reject or terminate him or her for providing false information, regardless of whether or not the crime itself is grounds for such action.

Unless local or state legislation prohibits, you may include questions pertaining to a candidate’s criminal record on the employment application. The following (or similar) questions should be considered.

  • Excluding minor traffic offenses, have you ever been convicted of a crime?
  • The misrepresentation or withholding of information on this application provides sufficient reason for rejecting or immediately terminating a job applicant. Your signature below verifies that all information provided is true to the best of your knowledge.
  • I understand that, in signing below, I am authorizing the Company to complete a background investigation, including a criminal background check.

 

© 2016 Zywave, Inc. All rights reserved. Not to be construed as legal advice.