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The Changing Climate for Obtaining a Job Applicant’s Criminal History

Eastridge Blog posted by Douglas R. Clifford on

changing climate for obtaining a job applicant's criminal history

One of the hottest issues in employment law as we enter 2018 is how employers treat individuals with a criminal history. Many states are cracking down on employers who use job applicants’ criminal histories in evaluating them for a position. To complicate matters, many states have varying approaches on this issue. Below is a short summation of the complex climate that exists for employers.

Can I Ask A Job Applicant about Criminal History?

It depends. An increasing number of states (and cities) are limiting, or prohibiting, employers from inquiring into a job applicant’s criminal background. As jurisdictions implement their own laws on the issue—each with its own nuanced requirements—employers that operate in multiple states are forced to understand and adapt to the requirements of each state where they conduct business.

What is the Problem with Asking about Criminal History?

A startling number of adult Americans have a criminal record. There is also wide statistical variances between the number of Caucasians with a criminal record versus African Americans and Hispanics.

Between 70 and 100 million Americans have criminal records.1 The arrest and incarceration rates for African American and Hispanic men are especially high—2 to 3 times higher than the general population.2 According to the Equal Employment Opportunity Commission (“EEOC”), 1 in 17 white men are expected to serve time in prison during their lifetime, while 1 in 6 Hispanic men, and 1 in 3 African American men can expect the same.3

This disparity has led to a concern that a criminal record can be used as subterfuge for employers to discriminate against minorities in hiring. The concern is that employers will use criminal history as a backdoor to discriminating against minorities, either intentionally or unintentionally. Therefore, for more three decades, the EEOC has promulgated guidelines and recommendations on the use of criminal history, including most recently in 2012. (For example, see http://www.eeoc.gov/policy/docs/ convict1.html and https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.) The EEOC has been clear that any inquiry into an applicant’s criminal history may violate federal law if the employer’s criminal history policy disproportionately impacts minorities, and if the employer fails to demonstrate that the policy is job-related and consistent with business necessity. This is why blanket prohibitions based on criminal history are akin to playing with fire.

Many State Laws Explicitly Prohibit or Limit Criminal History Inquiries

Increasingly, state laws now go even further than federal law and the EEOC. Rather than rely on the EEOC’s backdoor approach to uncovering discrimination, many states have explicitly banned or severely limited an employer’s right to even ask job applicants about criminal history. This is called “ban the box” legislation. “Ban the box” is a reference to prohibiting (or limiting) employers from requesting and/or considering an applicant’s criminal history for hiring decisions. Specifically, the “ban the box” is a reference to the box that would often appear on job applications that asked applicants to check the box if they had been arrested or convicted of a crime. For jurisdictions that have “ban the box” ordinances, the employer cannot ask (or is limited to ask) an applicant about his/her criminal history on a job application.

Some jurisdictions with a form of “ban the box” legislation include: Massachusetts, California, Connecticut, District of Columbia, Hawaii, Maryland, Oregon, Rhode Island, Vermont, and New Jersey. In total, more than half the states have adopted some of “ban the box” legislation.

Even cities have gotten into the act. Los Angeles, San Francisco, Baltimore, New York City, Chicago, Columbia, MO, Portland, OR, and Philadelphia are just some of the cities that have implemented their own versions of the “ban the box” law.

What is increasingly difficult for employers is that not every state/city “ban the box” ordinance is identical. City versions of the “ban the box” laws can duplicate, supplement or even conflict with state versions, which adds another layer of complexity to the issue.

As examples of the complexity, many jurisdictions with “ban the box” ordinances draw distinctions based on:

  • What is requested?

    Is the employer asking about arrests as well as convictions? What about records that have been expunged?

  • When is the information requested?

    With increasing frequency, many jurisdictions are disallowing employers from asking about criminal history until after a conditional offer of employment has been made to the applicant. This way, when an employer makes a decision after gathering an applicant’s criminal history, it will be evident (especially to a court!) that the employer made a hiring decision based on the criminal history. In such cases, performing an individualized assessment (discussed below in “Best Practices”) becomes critical because it will reflect that the decision to rescind the job offer was based on the criminal history’s connection to the requirements of the position.

  • How is the information requested?

    Many jurisdictions require a signed release from the applicant.

  • Where is the information obtained from?

    For example, Massachusetts is concerned with the source of the information gathered by the employer. If information about an applicant’s criminal history in Massachusetts is obtained from the Massachusetts courts, the employer must follow different, strict rules about that information compared to employers that do not access the Massachusetts courts for that information.

In sum, various jurisdictions have different allowances, requirements and procedures. What exists is a dizzying web of laws that must be understood by the employer to determine what it can and cannot do. The critical lesson for employers is to investigate and understand the criminal history laws of any jurisdiction where it does business.

Best Practices

Depending on your jurisdiction, there are some general “best practices” for dealing with applicants’ criminal histories:

  • Do not ask about criminal history on a job application or during an initial interview.

    Although it depends on which law is applicable to you, “ban the box” laws generally require that an employer wait until after conducting an interview, or even until after making a conditional offer of employment, before asking an applicant about his/her criminal history.

  • Do not have a blanket or zero-tolerance policy for excluding candidates with criminal history.

    In general, a zero-tolerance criminal history policy will be challenged under the law. So what should employers do with applicants when it learns of criminal history? Many jurisdictions require (and the EEOC recommends) that an employer perform an individualized assessment of the link between the criminal offense and the job duties, including evaluating factors such as:

    • Time elapsed since the offense
    • Individual’s age at the time of offense
    • Circumstances surrounding the offense
    • Number of offenses for which the individual has been convicted
    • Employment history before and after conviction
    • Evidence of rehabilitation and other mitigating factors

  • Implement an adjudication process.

    When an employer makes a decision that an applicant has been screened out based on past criminal conduct, notify the applicant of the decision in writing and provide the applicant with enough time to respond why he/she should not be excluded. The employer should then consider that information for its final decision.

  • Keep information about applicants' and employees' criminal records confidential.

    Failure to keep the information confidential could lead to a lawsuit for invasion of privacy, among other claims.

  1. Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2012 (US Dept. of Justice, 2014), available here.
  2. www.eeoc.gov/laws/guidance/arrest_conviction.cfm
  3. Id.

This article is for informational purposes only. Nothing herein should be considered legal advice or to create any attorney/client relationship. Different laws, guidelines, regulations or obligations may apply depending on your location and your particular circumstances. You should always consult a local attorney if you seek guidance on your particular situation.

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