Legal Way to Ask about a Criminal History

Making good hiring decisions typically requires gathering up all the pertinent information on candidates, which can include asking the candidate about their past and validating those details.

With regards to a criminal past, many employers ask: “Have you been found guilty of a felony in the last seven years?”

It’s important to note that job seekers who have a conviction for a violent crime in the past can often answer ‘no’ to this question, as some violent offenses are misdemeanors.

In most states, asking a broader question is legal, but there are many legal considerations organizations should think about when making any inquiry into applicants’ criminal background.

State and local laws

A number of state and regional governments have passed laws “banning the box,” forcing organizations to delay the criminal background question; possibly until the interview or after an offer has been made. Many other state and regional governments are considering similar measures.

There are also laws limiting the types of criminal data organizations can consider in their decision making process. Some states restrict organizations to only unresolved cases and convictions. Others limit the age of offenses that organizations can consider.

With so many laws pertaining to the issue, it is essential for hiring personnel to pay attention to the continuously shifting laws and guidelines.

Federal legal concerns

There are no federal laws directly regulating employers’ getting into applicants’ or employees’ criminal background, however, the Equal Employment Opportunity Commission is increasingly focused on this issue. In 2012, they published a 50-page document on employer’s indicated use of criminal background.

While not legally binding on organizations, the EEOC guidance indicates that organizations should think about the factors like severity and age of cases when considering criminal background. The EEOC also indicated that organizations should give each job seeker a chance to explain why the employer’s criminal background policy should not pertain to them.

Other things to consider

Many organizations only ask about felony convictions. However, a felony in one state may be categorized as a misdemeanor in a different state. Therefore, employers may want to focus on the underlying nature of the offense, not the offense itself.

Under federal law and all but a handful of state laws, organizations can think about an applicant’s entire criminal background, despite how long ago an incident took place.

Needless to say, applicants’ behavior since the offense, the character of the offense, and its relationship to the open position should be considered.

What to Ask

Legal experts recommend preceding the criminal background inquiry with a carefully crafted statement the company will not automatically exclude job seekers based upon criminal background without first reviewing the details. The statement should also warn that failure to correctly and completely answer the question may trigger in their removal from consideration or termination from employment.

At Labor Temps, we help our clients navigate the many pesky legal issues surrounding the hiring process. Please contact us today to see how we can help your company.