Human Resources News & Insights

Answers to tricky HR questions: OK to ask about criminal charges?

Our team of experts fields real-life everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation. Today’s question: How far can we go when questioning an applicant about criminal charges?

Question
We’re thinking about having a question on our job application asking if the applicant has ever been charged with a crime.

Is it legal to ask? Can the question cause problems?

Answer
It’s usually a bad idea to ask if an applicant has been charged with a crime. That’s the word from employment-law attorney Larry Peikes. Plus, some states make it illegal to ask about arrests or detentions that didn’t result in a conviction.

Weeding out applicants on this basis could expose the employer to a discrimination claim because members of certain racial and ethnic minorities tend to be arrested with greater frequency than nonminorities.

The safer approach to criminal background checks is to limit your questions to those about convictions and pleas of guilty or nolo contendre.

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  • Mary D.

    Our application asks, “Have you ever been convicted of a crime by a civillian or military court (other than a minor traffic violation)? If Yes, give details.” This question has been given the okay by two attorneys. From there, it depends on how you use the answer.

  • Jen

    What about checking Megan’s List for sexual predators? Has anyone ever done this on a background check?

  • Mary D.

    For the last 2 years, I have used http://www.familywatchdog.us which is the National Sex Offender List.

  • Lynn

    It is okay to ask about convictions on the application. We have that too by a labor attorney’s advice. What they are saying here is that it is not okay to ask have you ever been CHARGED with a crime.

  • Barbara

    I would also suggest using your state sex offender registry- newly released sex offenders do not always show up on the National Sex Offender registry immediately. I have found that several times this has happened.

  • Mary D.

    Yes, Lynn, I understood the message of the article. However, I just thought I would add what is allowed…asking about CONVICTIONS.

    Barbara, thanks for the tip. I was not aware the National list was not always up to date.

  • Barbara

    You are welcome. Generally there is a lag time of one up to four weeks for state releases who have registered on thier state site to update onto the National registry. I would also suggest to not limit your conviction question to a time period- i.e. have you been convicted of a crime within the last 5 years- many times felony convictions carry a minimum of 5 yrs in prison, so by the time that they have been released from prison and the time that a prespective employee completes your application the conviction date may very well have been more that 5 years prior to the date of application.

  • Joyce

    The service we use gives us a national criminal and sex offender search all in one. Saves time, money and it also shows us if and when other criminal background checks have been done and the results of those. All applicants are required to sign two waivers as well as the application itself, to prove we had permission to conduct the background investigation. This is done only after an applicant has been offered the position.

  • Mary D.

    Barbara, our company does not limit the number of years since conviction. I have heard of some that do. I actually fired someone for answering the question “No” when after two years of employment I found the true answer was “Yes”. (Happened years ago before full background checks became the norm.) Our application asks the applicant to sign a statement of truth and states that false or misleading information will result in rejection or immediate dismissal. In this case the individual had been convicted for breaking and entering with a suspended sentence. He was hired to enter customers homes as a serviceman. A little off the subject but somewhat related.

  • Barbara

    That is how our apps are set up also. I saves time and possible litigation in the long run.

  • Stacy

    It would depend on how relevant the conviction is to the the job at hand. When I worked for a realty management company, we had to hire Maintenance Personnel that would be in contact with the residents of the apartment complexes. Convictions for rape, sexual assualt, child molestation were huge a huge stop sign. You’d be surprised at how many came through with that kind of conviction that actually want to do this type of work. Almost makes you wonder what their motivation is. In my current job, we have to hire drivers and your driving record is very important so we need to have that before we even hire you. In certain situations, I think some folks don’t get enough of a chance to rehabilitate themselves. Employers see convictions 5 years or older that are not relevant to the job applied for and they shut them down which to me is not fair. We also have a military contract and the Sales People, Inventory Control people virtually anyone who wants to set foot on the naval yard MUST have a background check and terrorist watchlist background check. Those results do not come to me, they go to them and they let me know if the person is NOT allowed on the premesis.

  • HR in Ohio

    Our application asks separate questions for felony convictions (no time limit), misdemeanor convictions (7 years), and driving history if applicable for the position (3 years).

    I use my “4 Rs” when deciding whether or not to hire someone with a criminal conviction record:

    Relevance – how relevant was the conviction to the job?

    Recency – how long ago was the conviction?

    Repetition – did the candidate learn from the mistake?

    Restitution – did the candidate pay the fine and do the time?

    Of course, the assumes the candidate was honest on the application. We do criminal history checks to confirm. Offers are withdrawn and/or employment is terminated if the conviction was not fully disclosed on the application form.

  • Stacy

    HR in Ohio: Hope you don’t mind but I totally love the 4 R’s. I might have to hijack it from you.

    :) Good advice!

  • HR in Ohio

    Stacy – thanks for the kind words! Feel free to “hijack.”

  • Stacy

    I had lunch with a friend of mine who works at an employment agency. They have a zillion jobs and can’t get them filled because of the amount of people who come through that have Felony convictions that come up on the Background check. The biggest problem is that the candidates eliminate themselves when they LIE on the job application about convictions (they check the NO box) and then they get hits. They are more or less eliminated because they falsified the application when if they’d have told the truth, they might be willing to work with some of the lighter stuff. They also have a client who won’t take misdemeanors of any sort so they have the jobs but are scouring every paper and have gone to Craigs List to look for more candidates. She had a Lady who had 6 kids, great Administrative Skills and had come out of an abusive relationship with her husband. This Lady would have been a heck of a worker but she checked the (NO) box on her application. My friend was saddened because she had to let her go for falsifying the app but she would have totally worked with her had she checked the (YES) box considering her circumstances.

  • MAC

    I disagree with the attorney. The company can be liable for the actions of their employees – negligient hiring/retention. It’s standard practice to have a question that asks about felonies. The applicant should not be discriminated against but must honestly disclose crimes on their applications. I have had some doozies…. One applicant disclosed on the written applicationthat he was charged with assault for finding his wife in bed with another man”. and the comment “I’m sure you can understand” to follow. Generally, we don’t ask for that much detail. Just the date of the conviction and the charge. Also, in the interview, you can ask the person about the crime to assess, get a picture about where they are with their lives. Unfortunately, it’s a roadblock that they have put in their own way and while we can’t discriminate – we can do our due diligence, and should do our due diligence to protect all of our employees when we are hiring employees.

  • Sara

    Our application is worded much like others but we use the word ” dispostion” to refer to Criminal Convictions, Pending Charges and the like. Yes, everyone is innocent until proven guilty but we would not want to hire someone who has a pending charge that would result in their termination if/when they are convicted. Of course the exact crime is always taken into consideration and like many others have said wether or not the applicant is truthful is a huge part of the decision making process. Our application reads ” Have you ever had a criminal dispostion result in any matter other than not guilty?” This has been approved by legal council and our outside vendor who processes our Criminal Background Checks.

    On the other hand it is sad to see that so many companies will not even look at a candidate who has a felony conviction. Like I said, we look at the nature of the crime,how long ago the conviction took place and wether or not the candidate is honest on the application. I’ve heard that of all places McDonalds will simply throw away the application of anyone who checks “yes” I have been convicted of a Felony. This is just wrong. They have paid their debt to society and if they were convicted of something 20 yrs ago does it really matter when it comes to serving hamburgers? Of course there are exceptions to that statement because I can understand that you don’t want someone who robbed a bank to be handling money but someone who had a felony DUI 10 yrs ago?? Unfortuanatly most people who make one mistake, serve their time but end up serving years of joblessness because no one will hire them. And unfortuantly this probably leads a lot of people to illegal activities due to the fact that they can not obtain a legitimate job. But I digress. Sorry

  • http://www.cityofclovis.org Sandy

    In our perfect society, a felony conviction means the person is not worthy of another chance. (a lot of our government officials are as crooked as the day is long but they are given another chance.)

    Some young people, no matter what environment they grew up in, just don’t get it until they get in trouble and then it is too late. Really too late.

    Not all people that commit a felony would do it again if given a chance to live up to their potential but I believe that at least half of the convicted felons that are not given a chance will be repeat offenders because that is how the system is set up. It is set to make them fail. It creates desperate individuals that can not pay child support, rent, utilities, food, etc. They will be on the streets because nobody will give them a chance. Because of this mind-set we all have to look out for the repeat offender and his/her desperation.

    Do we want to support all of these people for the rest of their lives? I believe that the question should be asked and then if the person is qualified for the job, he/she should be given a chance to prove or disprove him/herself. Sex offenders/rapists shold never be put in certain positions but I don’t want to support them forever. If they are not exiled onto a deserted island then where do they go? Let them pick up trash on the highways or something that is away from the public.

    I believe that at least non-violent felony convictions should be given a chance to make something of their lives. I agree with Sara.

  • MAC

    Stacy,

    Lying on an application is an immediate disqualifer and CAN be a reason for termination during employment for my company. That’s the advice I give friends or those who I work with outside the office – don’t lie on the application. If you tell the truth you have a chance. If you don’t, then they will find out, and they will eliminate you from the hiring pool.

    Melissa

  • Leon

    We have a question thats asks “Have you ever been convited of a felony?” If “yes” please explain.
    One applicant’s answer was “yes”, explanation was “Shot my wife (but she shot me first)”. Strange but true!

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