Three Problems with Application Forms Asking About Past Convictions

One of the most effective uses of an application form is to enable an employer to directly ask an applicant if he or she has a criminal record. Unfortunately, many employers use language in their applications that is either too narrow, too broad, or too ambiguous. Each of these mistakes can put an employer in a difficult situation. Let us go over this language in detail—

Too Narrow

An example of a question that is too narrow is to only ask about felonies. Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious. Under California law, for example, most employers would want to know if an applicant had a conviction 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 and other states, 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 he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state

Too Broad

On the other hand, some employers ask questions that are so broad that it improperly covers matters that are protected. An example may be, “Have you ever committed a crime?” Or “Have You Ever Been Convicted of Any Crime?” There are a number of limitations under state and federal law concerning what an employer may legally ask about or “discover” concerning an applicant’s or employee’s criminal record. 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 he is forced to reveal information about himself that he is legally entitled not to disclose, an employer can actually be sued in some states for “defamation by compelled self-publication.” In other words, if forced to say something defamatory about himself, an applicant may be able to file a lawsuit against the employer for defamation.

Too Ambiguous

The third mistake is to ask an applicant, “Have you ever been convicted of a felony or serious misdemeanor?” or “Have you ever been convicted of a crime of violence?” or a similar question that calls for an opinion. The problem occurs when an applicant is called upon to make a judgment about his own offense. To determine if a crime can be labeled as “serious” can call for a very complex legal and factual determination on which lawyers and even judges could disagree. At times an applicant may be simply confused by court proceedings and may not understand the results or what they mean. By asking a question that is ambiguous and leaves waffle room, an applicant can argue that in his or her mind the offense was not serious and a “no” answer was truthful. That is why a question cannot contain any ambiguity