Can Job Applications Ask About Criminal Records?

employment application
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Job seekers with a criminal history often wonder whether they have to disclose that information when applying for a job. On many job applications, there is an option to check a box indicating whether or not you have a criminal record or conviction. If you check yes, you are asked to explain your circumstances.

However, there is a good chance that a prospective employer will deny you employment even before they read the rest of your application. While you may encounter some challenges while job searching if you have a criminal record, you should know your rights, and what questions you can appropriately be asked during the application process.

It’s important to remember that while an employer can choose not to hire you based on your record, you can also be fired for not disclosing your record, or misleading the employer during the application process. You are much better off being truthful if you are afforded the opportunity to explain your situation. If you have impressed the employer with your qualifications and experience, your criminal record may not be a hindrance to being offered the job. Be prepared to share any changes that you have made to overcome any limitations which led to your crime.

Ban the Box Legislation

Because of the potential for discrimination, there are laws in many locations known as “Ban the Box” legislation. This legislation limits what an employer can ask candidates on a job application or during the early stages of the screening process. Laws and policies require or recommend that employers consider how all candidates meet the qualifications for jobs prior to considering criminal record information.

This does not mean that employers can’t go ahead and check your criminal history or consider its impact on potential performance when conducting a background check later in the hiring process.

State and Local Laws Which Regulate Job Application Questions

According to the National Employment Law Project, over 150 counties and cities and a total of 30 states have adopted laws or policies which impact what employers can ask job candidates about their criminal history on job applications prior to evaluating their qualifications —Arizona (2017), California (2017, 2013, 2010), Colorado (2012), Connecticut (2016, 2010), Delaware (2014), Georgia (2015), Hawaii (1998), Illinois (2014, 2013), Indiana (2017), Kentucky (2017), Louisiana (2016), Maryland (2013), Massachusetts (2010), Minnesota (2013, 2009), Missouri (2016), Nebraska (2014), Nevada (2017), New Jersey (2014), New Mexico (2010), New York (2015), Ohio (2015), Oklahoma (2016), Oregon (2015), Pennsylvania (2017), Rhode Island (2013), Tennessee (2016), Utah (2017), Vermont (2016, 2015), Virginia (2015), and Wisconsin (2016).

Ten states—California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont—have also mandated the removal of conviction history questions from job applications for private employers.

In addition to these ten states, the District of Columbia and 30 cities and counties now extend their fair-chance hiring policies to government contractors. Sixteen of those localities—Austin, Baltimore, Buffalo, Chicago, Columbia (MO), the District of Columbia, Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD), Rochester, San Francisco, Seattle, and Spokane—extend their fair-chance hiring laws to private employers within their jurisdictions.

The laws are intended to protect job seekers with a criminal record from being eliminated from consideration prior to receiving a fair chance to meet with and impress employers. However, employers in these jurisdictions can still conduct background checks after they have issued a tentative offer. They can eliminate candidates from consideration on the basis of their findings. 

Contact your state office of the Department of Labor for information about the latest laws in your location.

Application Questions in States Without Legislation

Currently, in states without legislation that prohibits asking, most applicants must indicate if they have been convicted of a crime in the past ten years. Job applicants convicted of disorderly offenses in the past five years are subject to the same scrutiny.

Federal Directives

On the federal level, legislation intended to ban the question about criminal records on all job applications was introduced in Congress in 2012 and was tabled with no vote taken. However, the U.S Equal Employment Opportunity Commission (EEOC) has designated exclusion of a criminal record box as a best practice for equitable hiring. The agency recommends that employers consider whether any criminal offenses will impact the candidate’s ability to perform the functions of the target job in a safe and effective manner prior to excluding applicants.

 

It is unclear at this juncture whether or how the Trump administration might alter these policies and recommendations.

The Society for Human Resource Management (SHRM) Recommendations

The primary professional association for human resources practitioners recommends that its members establish policies prohibiting the inclusion of criminal record information on job applications. They recommend that the best time to conduct a background check is after a conditional offer is made based on how well a candidate’s qualifications match the specific job requirements. However, an SHRM survey in 2017 indicated that 48% of employers still have a question on their application about criminal history.