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From the ESR Mailbox: Employment Applications and Questions about Past Criminal Convictions

By Lester Rosen, ESR President

From the ESR mailbox: Our HR department is changing our application form so that an applicant only has to answer questions about any criminal matter going back seven years. They say that this is required under the laws of many states, including California. Are they right?

Answer: The issue of whether employers can use a job application in order to ask about a job applicant’s criminal record is getting complicated. For example, starting November 4, 2010, such questions are not permitted in one state, Massachusetts. For that reason, employers should have their legal department or employment lawyer double check the application form.

Although Employment Screening Resources (ESR) cannot provide legal advice, based upon commonly accepted industry practices, there is not really a good justification for a seven year limitation on applications.

First, the seven year rule is limited to just eleven states (California, Colorado, Kansas, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Texas, and Washington). Nevada also has a form of a seven year rule, but it appears to apply to reports issued for credit purposes and not employment.

Of those states, there is broad agreement that the seven year rule for Texas and Colorado has been pre-empted by the federal Fair Credit Reporting Act (FCRA) because the rules were enacted too late to qualify for an exemption. A strong argument can also be made that it is pre-empted in California as well, although most firms still follow it.

Even for states with a seven year rule in effect, there is often an income exception, so that over a certain income level, a crime older then seven years can be reported. For example, Kansas, Maryland, Montana, Massachusetts, New Hampshire, and Washington waive the time limit if the applicant is reasonably expected to earn over $20,000 a year. So, as a practical matter, the limitation itself is very limited. California has no income exception, however.

Also, how the seven years is calculated can also get complicated. Seven years by no means actually means seven years. For example, a crime may have been committed more then 7 years ago, but if the person was still in custody within the seven years, it is likely reportable. Or a person committed a crime 9 years ago and violated parole or probation and spent a day in jail within the past seven years. That means the seven years clock starts over and it is reportable. The idea is that person must have been custody free for seven years. Generally speaking, being on parole or probation does not “toll” (or in other words stop) the seven year clock. It normally requires that an applicant be free of physical confinement.

Another critical point is that seven years is a reporting restriction is placed on a screening firm. Even for those states with a seven year rule, there is NO restriction upon an employer asking. Even if California, there is no requirement the employer limit the question to seven years.

The one other consideration, of course, is that going back too far can potentially create an Equal Employment Opportunity Commission (EEOC) issue because an old crime may be less relevant to a job (depending upon the nature and gravity of the of the crime and the nature of the job).

In some states, there are limits on asking about arrests that did not result in a conviction, as well as additional state specific limitations.

The bottom line is that such a limitation in the application does not appear to be mandated by sate or federal law. However, your firm’s attorney is in the best position to give advice on this issue. For more information on what language to use in applications, visit http://www.esrcheck.com/articles/crime_and_employment_application.php .

For more information on employee background checks and pre-employment screening, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.

Source: http://hr.toolbox.com/blogs/background-checks/employment-applications-and-questions-about-past-criminal-convictions-41276