Criminal Records and Employment Applications
NOTE: This article is undergoing an update due to the 2012 updated Equal Employment Opportunity Commission (EEOC) Guidance on Criminal Records. To help employers comply with EEOC rules, Attorney and safe hiring expert Lester Rosen has written a whitepaper: ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance.’ The complimentary whitepaper is currently undergoing a controlled release and is available only to employers interested in screening by emailing EEOCwhitepaper@esrcheck.com.
Employers have become increasingly aware of the importance of knowing if an applicant has a criminal record. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring where the hiring decision results in harm, and it could have been avoided by a simple criminal record check. Checking criminal records demonstrates Due Diligence and is also an important preventative measure to protect against workplace violence.
One of the most effective tools an employer has is the use of an application form in the hiring process. An application enables an employer to directly ask an applicant if they have a criminal record The advantage is that an employer can use a well worded application form to discourage applicants with something to hide, and to encourage applicants to be open and honest.
Unfortunately, many employers use language in their applications that is either to narrow, too broad or too ambiguous. Each of these mistakes can put an employer in difficulty.
1. Too Narrow: An example of a question that is too narrow is to only ask about felonies and not misdemeanors, which can be very serious. Under California law, for example, most employers would want to know if an applicant had a convictions for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that they have not been convicted of a felony, even though they have serious misdemeanor convictions that an employer needs to know about.
2. Too Broad: On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. There are a number of limitations under California and Federal law concerning what an employer may legally ask about or discover concerning an applicant's or employee's criminal records. In fact, it can be a misdemeanor in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where they are forced to reveal information about themselves that they are legally entitled not to disclose, an employer can actually be sued for "defamation by publication" In other words, by being forced to say something defamatory about themselves, an applicant may be able to file a lawsuit for defamation against the employer.
3 Too Ambiguous: The third mistake is to ask an applicant, "Have you ever been convicted of a felony or serious misdemeanor,; or a similar question that calls for an opinion. The problem is that an applicant is being called upon to make a judgment about their own offense Whether a misdemeanor, for example, is serious can call for a very complex legal and factual determination on which lawyers could disagree. By asking a question that is ambiguous and leaving waffle room, an applicant can argue that in their mind, the offense was not serious and that their "no' answer was truthful. That is why the question cannot contain any ambiguity.
Here are some of the limitations involved. Although not every state has rules as restrictive as California, employers in all states should be careful to make ensure that their applications are legally compliant.
An employer may NOT ask about arrests or detentions that did not result in a conviction.
An employer may only consider convictions or pending cases;
There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, cases where a person participated in pre-trial diversion, or certain minor marijuana convictions;
An employer should NOT automatically deny employment due to a criminal conviction, but should consider the nature and gravity of the offense, whether it is job related, and when it occurred.
ESR generally recommends the following language for California employers based upon language recommended in Human Resources publications. The language is as follows:
Have you ever been convicted for a crime? (Exclude convictions for marijuana-related offenses for personnel use more than two years old; convictions that have been sealed, expunged or legally eradicated, and misdemeanor convictions for which probation was completed and the case was dismissed)
If yes, please briefly describe the nature of the crime(s), the date and place of conviction and the legal disposition of the case. This company will not deny employment to any applicant solely because the person has been convicted of a crime. The company however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.
Are you currently out on bail, the subject of a current warrant for arrest or released on your own recognizance pending trial? Yes ___ No ___
An alternative wording for the first question that avoids the problems associated with certain minor convictions is to use the following:
" Have you ever been convicted of a felony, or a misdemeanor involving any violent act, use or possession of a weapon or act of dishonesty for which the record has not been sealed or expunged?"
It is normally recommend that the application contain language that the conviction of a crime will not automatically result in a denial of employment. Automatic disqualification could be a violation of state and federal discrimination laws. However, an employer may deny employment if the employer can establish a business-related reason for the refusal to hire.
In addition although in some states, such as California, there are restriction as to how far back a background screening firm can go back in the records, employers have no such limitation. Of course, under the Equal Employment Opportunities Commission rules, an older criminal matter is less likely to be relevant to hiring, there is no limitation for employers in terms of phrasing the question
In addition, all applications should have language that the application is true and correct, and that any misstatements or omission of material facts in the application or the hiring process will result in disqualification, or termination of employment. Where an applicant has failed to honestly disclose the existence of a criminal conviction, then the employer's concern may be the lack of honesty involved. Negative information honestly disclosed in an interview and explained may well have no effect, especially if the applicant otherwise has an excellent and verified work history. However, if the applicant is dishonest and the information is first revealed by a background check, then the failure to hire may be justified because of the false application or dishonesty in the interview. That is why it is important to have broad enough language in the application to cover all relevant offenses.
It is usually preferable to have completed the criminal check (as well as the entire background screening) before an employment offer is made or employment starts. An employer may offer or start employment conditioned on the background screening. However, once a person starts, an employer can be in a more difficult position in ending employment if the report is unsatisfactory to the employer. It is important to specify in a written offer letter that employment is conditioned upon the receipt by the employer of a background report that is satisfactory to the employer. The language must specify that the report must be satisfactory to the employer, so an employer is not put in a position of debating what constitutes a satisfactory report.
It is also important to understand that there is no national database that can be used to obtain criminal records. Background firms must physically check each courthouse where a person has lived, worked or studied that may contain a criminal record. That is why it is important to verify an applicant's employment history to ensure there are no unexplained gaps in an applicant's whereabouts. There have many instances of gaps in employment being related to criminal convictions.
Please note: This report is not intended and should not be taken as legal advice. It is based upon generally accepted human resources and industry practices. An employer should contact their own attorney or legal department to answer any legal questions.
Note: The various rules for California employers are found in the federal Fair Credit Reporting Act, the California Labor Code, the California Civil Code, the rules of the Fair Employment and Housing Commission contained in the California Code of Regulations, as well as federal case law interpreting equal employment opportunity laws and decisions by the federal Equal Employment Opportunity Commission.