Can You ask about criminal history on a job application?

Can You Ask About Criminal History on a Job Application?

When it comes to hiring new employees, employers often want to know as much as possible about a candidate’s background. One of the most common questions that arise is whether it’s legal to ask about a candidate’s criminal history on a job application. The answer is not a simple yes or no.

Federal Laws and Regulations

In the United States, the Fair Credit Reporting Act (FCRA) and the Equal Employment Opportunity Commission (EEOC) play a significant role in determining what employers can and cannot ask about a candidate’s criminal history. The FCRA requires employers to obtain written consent from job applicants before conducting a criminal background check. This means that employers must obtain explicit permission from the candidate before running a background check, which may reveal information about their criminal history.

The EEOC’s Guidance

In 2012, the EEOC issued guidance on the use of criminal history in employment decisions. The guidance states that employers must consider the following factors when making hiring decisions based on criminal history:

• The nature and severity of the crime
• The time that has passed since the crime was committed
• The relevance of the crime to the job
• The potential impact of the crime on the employee’s ability to perform the job

State Laws and Regulations

While the FCRA and EEOC provide federal guidance, individual states have their own laws and regulations regarding the use of criminal history in employment decisions. Some states, such as California, Hawaii, and Maryland, have enacted laws that restrict the use of criminal history in employment decisions. For example, California’s ban-the-box law prohibits employers from asking about a candidate’s criminal history until after the initial interview.

Best Practices for Employers

So, what can employers do to ensure compliance with federal and state laws while still making informed hiring decisions? Here are some best practices to consider:

• Use a standard application process: Use a standard application process for all candidates, and avoid asking about criminal history until after the initial interview.
• Use a neutral job description: Use a neutral job description that does not reference criminal history or specific crimes.
• Focus on job qualifications: Focus on the qualifications and skills required for the job, rather than a candidate’s criminal history.
• Use a third-party provider: Use a third-party provider to conduct background checks, and ensure that the provider is compliant with the FCRA and state laws.
• Document all decisions: Document all hiring decisions, including the reasons for rejecting a candidate due to criminal history.

Best Practices for Job Seekers

As a job seeker, it’s important to be aware of your rights and the laws surrounding criminal history in employment decisions. Here are some best practices to consider:

• Know your rights: Know your rights under the FCRA and state laws, and be aware of what information is protected.
• Be honest on your application: Be honest on your application about your criminal history, and provide as much information as possible.
• Ask about the company’s policy: Ask about the company’s policy on criminal history, and whether they conduct background checks.
• Consider a lawyer: Consider consulting with a lawyer if you have a criminal record and are concerned about its impact on your job search.

Conclusion

In conclusion, while employers are generally allowed to ask about a candidate’s criminal history on a job application, they must do so in a way that is compliant with federal and state laws. Employers should use a standard application process, focus on job qualifications, and use a third-party provider to conduct background checks. Job seekers should be aware of their rights, be honest on their application, and ask about the company’s policy on criminal history. By following these best practices, employers and job seekers can ensure a fair and legal hiring process.

Table: Summary of Federal and State Laws

Bullets List: Best Practices for Employers

• Use a standard application process
• Use a neutral job description
• Focus on job qualifications
• Use a third-party provider
• Document all decisions

Bullets List: Best Practices for Job Seekers

• Know your rights
• Be honest on your application
• Ask about the company’s policy
• Consider a lawyer