Making Informed Hiring Decisions: How to Ask Applicants About Their Criminal History

Many employers ask applicants a very basic question such as "Have you been convicted of a felony in the last seven years?"

The majority of applicants with criminal offenses that would be relevant and of concern to the employer can often answer "no" to this question. I recommend that employers ask a much broader question.

In Texas and most states, asking a broader question is still legal and advisable if the employer has sound policies for evaluating applicants’ criminal history.

State Laws and Local Ordinances

A handful of state and local governments have "banned the box," delaying the criminal history question until later in the employment process. Some of these rules delay the question until the interview while others delay it until after an offer has been made.

There are also regulations limiting the kinds of criminal information employers can consider. Some states limit employers to considering only pending cases and convictions. Others limit the age of offenses that employers can consider.

A new trend is to require the employer to document how they used criminal history in making a hiring decision. New York City even requires that employers provide a copy of the documentation to applicants!

While no Texas cities have banned the box for private employers, Austin is considering such a move.

It is important to pay attention to the constantly changing rules and regulations in each jurisdiction where your business operates. Your background screening partner should be able to provide you resources specific to each jurisdiction in which you operate.

Federal Law

There are no federal laws directly governing employers’ inquiry into applicants’ or employees’ criminal history.

However, a 1975 federal case, Green vs. Missouri Pacific Railroad, determined that an employer who eliminates all applicants with a criminal history, regardless of age or severity, from consideration will likely violate Title VII of the Civil Rights Act of 1964.

The court’s reasoning was that minorities (in this case, blacks) are arrested, prosecuted, and convicted at a higher rate than whites. Therefore, by eliminating all applicants with any criminal history from consideration, minorities would be excluded at a higher rate than the white population.

Because some criminal offenses would be so minor, so unrelated to the risks of the position, or so old as to be inconsequential to the individual’s effectiveness or safety in the job, such a broad exclusion would create a "disparate impact."

In recent years, the Equal Employment Opportunity Commission has increasingly focused on this issue. In 2012, they published a 50+ page guidance document on employer’s use of criminal history.

While not legally binding on employers, the EEOC guidance suggests that employers should consider the factors referenced in the Green case when considering criminal history:

• The nature and severity of the offense,
• The age of the offense, and
• The offense’s relationship to the position.

The EEOC also suggested that employers should give each applicant an opportunity to explain why the employer’s criminal history policy should not apply to them. Calling this an "individualized assessment," the EEOC included a lengthy list of items that an applicant might include in such an explanation, including the circumstances surrounding the offense, their age at the time of the offense, their subsequent work and education history, and their character references.

The EEOC has brought several class-action cases against employers claiming that the employer’s criminal history policies violated Title VII by creating a disparate impact. They have lost all but one of these cases. The one case that they did not lose, against BMW, was settled. To date, the EEOC has never won a case in court regarding an employer’s use of criminal history.

However, EEOC investigations are time-consuming and expensive. Creating well-reasoned policies governing the fair consideration of criminal history will help employers ensure that they continue to hire a safe and effective workforce while addressing the EEOC’s concerns.

Misdemeanors and Felonies

Many employers make the mistake of only asking about felonies.

The problem is that many criminal offenses that are a felony in one state may be classified as a misdemeanor in another state. For example, statutory rape is a felony in Texas but may be a misdemeanor in other states.

The real issue for employers should not be the classification of the offense but the nature of the underlying conduct.

For instance, do you really care that your delivery service driver’s DWI conviction last year was a misdemeanor? No, what you care about is that his past conduct may make him a less-than-desirable candidate for your driving position.

Convictions, Deferred Adjudications, and Other Outcomes

When employers limit their considerations only to convictions, they miss many case outcomes that may be of concern.

For instance, most states offer defendants for many serious offenses deferred adjudication. Typically, this means that the individual pleaded guilty or no contest to the charges against them and agreed to serve probation. The court accepts their plea but does not immediately enter a conviction against them. If the person successfully completes the probation, then the case is dismissed. If they screw up the probation, the court can use their plea to enter a conviction against them.

Even the EEOC has said that the employer’s consideration should be whether it is reasonable to believe that the individual engaged in the underlying conduct. If the individual pleaded guilty or no contest (which means that the individual neither admits nor disputes the charge but accepts a conviction), it certainly seems reasonable to believe that the individual engaged in the underlying conduct.

Some states have other dispositions such as pre-trial diversions or first-time offender programs. When in doubt as to the outcome of a case, the employer should ask their background screening partner for assistance in understanding the local laws.

In most states, an employer can legally consider deferred adjudications and other outcomes in making their hiring decision. We recommend that the criminal history inquiry include those kinds of cases.

Dismissed Cases and Arrests

Employers often believe that they cannot consider dismissed cases or arrest records. In most states, this is not true.

Cases are dismissed for a variety of reasons. Sometimes the defendant agrees to pay the victim restitution. Other times, they agree to attend anger management classes or fulfill other terms of probation (as in a deferred adjudication).

And while it is true that the fact of an arrest, in and of itself, does not mean that the individual engaged in the underlying conduct, it may warrant additional research by the employer before disregarding it.

When discussing arrests, the EEOC has said that the employer should determine whether it is reasonable to believe that the individual engaged in the underlying conduct.

Arrests may not turn into criminal cases for a variety of reasons. A common example would be where the complaining witness refuses to cooperate with the investigation. This is common in domestic violence cases.

Our recommendation to employers is, whenever the underlying conduct would have been of concern had it been a conviction, ask your background screening partner to obtain additional information such as police reports and court documents so that you can make an informed decision about the underlying conduct.

What to Ask

We recommend preceding the criminal history inquiry with a statement that the employer will not automatically exclude applicants with criminal history without first reviewing the details.

Follow that statement with a warning that failure to accurately and fully answer the question may result in their elimination from consideration or termination from employment.

Government contractors or companies in regulated industries should ask if the individual has ever been sanctioned, excluded, or otherwise prohibited from participating in any government-regulated program. Often, these kinds of infractions aren’t addressed elsewhere in the application process.

The actual criminal history inquiry should ask for as much information as legally allowable under the laws and ordinances in the jurisdictions where the company operates.

For a copy of our current sample criminal history inquiry, please email me at coffey@imperativeinfo.comwith your request. I’m glad to share!

Individualized Assessment

As mentioned earlier, the EEOC believes that employers should afford an individualized assessment to each applicant with a criminal history that may be of concern.

We recommend including a space for the applicant to provide that information with the criminal history inquiry. Our sample criminal history inquiry form includes the following paragraph along with space to respond:

If you believe that the criminal history information provided above does not adequately reflect the circumstances surrounding your criminal history or if there is additional information not included in the information you have already provided that you believe the Company should be aware in evaluating your fitness for this position, please provide that information below. You may also provide this information on a separate document bearing your signature and the date, if desired.

How to Ask

Our sample criminal history inquiry is a separate document that can be provided to the applicant with the application form or, if required, later in the selection process.

This makes the timing of the inquiry flexible according to local ban-the-box laws.

Having the criminal history information as a separate document has the additional benefit of allowing the human resources department to separate the information from the application when distributing it to hiring managers. Even information that is irrelevant to the job can be embarrassing to the applicant, limiting its distribution to those with a strict need-to-know, protects the applicant’s (and potential future-employee’s) privacy.

This article is an excerpt from his e-book, Seven Steps to Making Confident Hiring Decisions: Preventing Loss, Liability, and Litigation While Keeping Criminals, Creeps, and Crazies Out of Your Company. The entire e-book is available for download at http://www.imperativeinfo.com/7.