Answers to tricky HR questions: OK to ask about criminal charges?
October 7, 2009 by Jim GiulianoPosted in: Answers to tricky HR questions, Behavior, Communication, Hiring, In this week's e-newsletter, Latest News & Views
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.
Tags: applicant, Larry Peikes
October 12th, 2009 at 11:36 am
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.
October 12th, 2009 at 1:52 pm
What about checking Megan’s List for sexual predators? Has anyone ever done this on a background check?
October 12th, 2009 at 3:13 pm
For the last 2 years, I have used http://www.familywatchdog.us which is the National Sex Offender List.
October 13th, 2009 at 6:59 am
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.
October 13th, 2009 at 7:43 am
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.
October 13th, 2009 at 9:06 am
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.
October 13th, 2009 at 11:03 am
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.
October 13th, 2009 at 11:06 am
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.
October 13th, 2009 at 11:41 am
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.
October 13th, 2009 at 11:45 am
That is how our apps are set up also. I saves time and possible litigation in the long run.
October 14th, 2009 at 6:34 am
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.
October 14th, 2009 at 5:02 pm
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.
October 15th, 2009 at 6:43 am
HR in Ohio: Hope you don’t mind but I totally love the 4 R’s. I might have to hijack it from you.
October 15th, 2009 at 4:51 pm
Stacy – thanks for the kind words! Feel free to “hijack.”
October 16th, 2009 at 10:46 am
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.