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‘Can I Ask About Criminal History?’ And Other FAQs About Background Checks

Many states and local jurisdictions have enacted laws that restrict employers from asking an applicant about his/her criminal background on application forms. Some go even further, restricting these types of questions until after the employer makes a conditional job offer. These restrictions are often referred to as "ban the box" laws.

Below are answers to frequently asked questions about criminal background checks and ban the box laws:

Q: What is a "ban the box" law?

A: "Ban the box" is a term given to legislation that regulates when an employer can inquire about an applicant's criminal history, and in some cases dictates what steps the employer must take once they become aware that an applicant has a past criminal conviction. Quite literally, it refers to the "check box" that many employers have on their standard employment application that asks applicants whether they have ever been convicted of a crime.

Q: What states currently have ban the box laws?

A: Currently, Connecticut (effective January 1, 2017), the District of Columbia, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont have ban the box laws covering private employers.

Note: Many local jurisdictions have similar laws and some additional state ban the box laws apply to public employers only.

Q: Are there exceptions to ban the box laws?

A: Each law is different, but many include exceptions, such as when federal or state law requires the employer to exclude applicants with certain convictions. Check your state or local ban the box law for specifics.

Q: Can I ask applicants if they have been convicted of a crime? If so, when?

A: While no state prohibits employers from asking about criminal convictions entirely, in states and local jurisdictions with ban the box laws, employers must delay asking these types of questions until later on in the pre-employment process. These laws differ on when exactly such inquiries may be made. For instance, Minnesota's law generally requires employers to wait until a candidate has been selected for an interview before asking about criminal convictions. In Hawaii and the District of Columbia, employers must wait until after they have made a conditional job offer.

Q: What is a conditional job offer?

A: Generally, a conditional job offer is contingent on the satisfactory completion of certain steps, such as a background check, reference check, drug test, and proof of work eligibility. Any contingencies that could lead to the withdrawal of the offer should be clearly indicated in the written job offer.

Q: Are there restrictions on the types of criminal information that can be investigated?

A: Even in states without ban the box laws, state and/or local law may limit the scope of criminal history inquiries. For instance, some laws limit inquiries to convictions that occurred within the past few years or prohibit employers from asking about sealed or expunged records.

Additionally, some states and local jurisdictions prohibit employers from asking about arrests and certain types of convictions. In these states and local jurisdictions, inform applicants of the information they will not be asked to disclose in response to criminal history inquiries.

Note: The Fair Credit Reporting Act (FCRA), and similar state laws, have specific guidelines for conducting background checks, including requiring that employers provide written notification to, and obtain authorization from, any individual subject to background investigations. The FCRA also requires employers to follow certain steps when taking adverse action against an individual (e.g., failing to hire) based on the results of the investigation.

Q: What if my state doesn't have a ban the box law? Should I still remove criminal history questions from my application form?

A: While there is no federal law specifically prohibiting employers from asking applicants if they've ever been convicted of a crime, the Equal Employment Opportunity Commission (EEOC) recommends employers avoid asking for this information on an application form. If and when employers do ask about convictions later in the selection process, the inquiries should be job related and consistent with business necessity.

Q: What are my responsibilities once I learn that an applicant has been convicted of a crime?

A: EEOC guidance states an employer cannot simply disregard any applicant who has been convicted of a crime. Instead, employers should show how the specific criminal conduct, and its dangers, relates to the risks inherent in the duties of a particular position.

The EEOC identified two ways employers can demonstrate that an exclusion based on a criminal conviction is job related and consistent with business necessity:

  • The employer validates the criminal conduct screen per the Uniform Guidelines on Employee Selection Procedures standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or
  • The employer: (a) develops a targeted screen considering the nature and gravity of the offense, the time elapsed since the conviction or completion of the sentence, and the nature of the job; and (b) conducts an "individualized assessment" for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.

Consider these guidelines and consult legal counsel as needed.

Q: What is an "individualized assessment"?

A: The EEOC guidance recommends that the individualized assessment consist of:

  • Notice to the individual that he or she has been screened out because of a criminal conviction;
  • An opportunity for the individual to demonstrate that the exclusion should not be applied due to his or her particular circumstances; and
  • Consideration of whether the additional information provided by the individual warrants an exception to the exclusion.

Employers should consider a variety of factors to determine whether exclusion based on an individual's criminal record should be applied, including:

  • The facts or circumstances surrounding the offense;
  • The number of offenses for which the individual was convicted;
  • Older age at the time of conviction, or release from prison (the EEOC notes that recidivism rates tend to decline as an ex-offender's age increases);
  • Evidence that the individual performed the same type of work, post-conviction, with no known incidents of criminal conduct;
  • The length and consistency of employment history before and after the offense;
  • Rehabilitation efforts (such as education or training);
  • Employment or character references and any other information regarding fitness for the particular position; and
  • Whether the individual is bonded under a federal, state, or local bonding program.

Note: Your state or local law may have additional requirements for assessing criminal history information.

Q: Besides criminal history, are there any other types of information that may be off limits or restricted on application forms or in background checks?

A: In many states and local jurisdictions, yes. For example, some states have enacted laws restricting employer access to applicants' credit history. Recently, one state—Massachusetts—enacted a law (effective July 2018) that includes a provision prohibiting employers from asking about salary history on employment applications.

Conclusion:

Criminal history inquiries must be performed in accordance with federal, state, and local laws. Make sure you understand the rules that apply to your business before asking applicants about criminal history.

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