Before You Ask, Understand Why and What You’re Asking

Making confident hiring decisions includes gathering as much relevant information about the applicant as possible. Ideally, this means obtaining the information from the applicant and verifying it.

Many employers include a basic criminal history inquiry on their employment application: “Have you been convicted of a felony in the last seven years?”

Applicants who have criminal histories that include assault, theft, driving while intoxicated, terroristic threats, and other offenses can often answer NO to this question.

These offenses are often misdemeanors. And, even when they are felonies and the applicants have pled guilty to the conduct alleged and served probation, the cases often do not end in convictions.

In Texas and most states, asking a broader question is still legal and advisable if the employer has sound policies for evaluating applicants’ criminal history.

There are several legal considerations employers should consider when making any inquiry into applicants’ criminal history.

State Laws and Local Ordinances

A handful of state and local governments have “banned the box,” delaying the criminal history question until later in the employment process. Some of these rules delay the question until the interview while others delay it until after an offer has been made.

Austin was the first Texas city to ban-the-box for private employers and others are likely to follow suit.

There are also regulations limiting the kinds of criminal information employers can consider. Some states limit employers to considering only pending cases and convictions. Others limit the age of offenses that employers can consider.

A new trend is to require the employer to document how they used criminal history in making a hiring decision. New York City even requires that employers provide a copy of the documentation to applicants!

It is important to pay attention to the constantly changing rules and regulations in each jurisdiction where a business operates. Imperative works with our clients to identify the rules specific to each jurisdiction in which they operate.

Federal Law

There are no federal laws directly governing employers’ inquiry into applicants’ or employees’ criminal history.

However, a 1975 federal case, Green vs. Missouri Pacific Railroad, determined that an employer who eliminates all applicants with a criminal history, regardless of age or severity, from consideration will likely violate Title VII of the Civil Rights Act of 1964.

The court’s reasoning was that minorities (in this case, blacks) are arrested, prosecuted, and convicted at a higher rate than whites. Therefore, by eliminating all applicants with any criminal history from consideration, minorities would be excluded at a higher rate than the white population.

Because some criminal offenses would be so minor, so unrelated to the risks of the position, or so old as to be inconsequential to the individual’s effectiveness or safety in the job, such a broad exclusion would create a “disparate impact.”

In recent years, the Equal Employment Opportunity Commission has increasingly focused on this issue. In 2012, they published a 50+ page guidance document on employer’s use of criminal history.

While not legally binding on employers, the EEOC guidance suggests that employers should consider the factors referenced in the Green case when considering criminal history:

  • The nature and severity of the offense,
  • The age of the offense, and
  • The offense’s relationship to the position.

The EEOC also suggested that employers should give each applicant an opportunity to explain why the employer’s criminal history policy should not apply to them. Calling this an “individualized assessment,” the EEOC included a lengthy list of items that an applicant might include in such an explanation, including the circumstances surrounding the offense, their age at the time of the offense, their subsequent work and education history, and their character references.

The EEOC has brought several class-action cases against employers claiming that the employer’s criminal history policies violated Title VII by creating a disparate impact. They have lost all but one of these cases. The one case that they did not lose, against BMW, was settled. To date, the EEOC has never won a case in court regarding an employer’s use of criminal history.

However, EEOC investigations are time-consuming and expensive. Creating well-reasoned policies governing the fair consideration of criminal history will help employers ensure that they continue to hire a safe and effective workforce while addressing the EEOC’s concerns.

Misdemeanors and Felonies

Many employers make the mistake of only asking about felonies.

Many criminal offenses that are a felony in one state may be classified as a misdemeanor in another state. For example, statutory rape is a felony in Texas but may be a misdemeanor in other states.

The real issue for employers should not be the classification of the offense but the nature of the underlying conduct.

For instance, do you really care that your delivery service driver’s DWI conviction last year was a misdemeanor? No, what you care about is that his past conduct may make him a high-risk candidate for your driving position.

Convictions, Deferred Adjudications, and Other Outcomes

When employers limit their considerations only to convictions, they miss many case outcomes that may be of legitimate concern.

For instance, most states offer defendants for even serious offenses deferred adjudication. Typically, this means that the individual pleads guilty or no contest (did not deny or contest the allegations) to the charges against him and agrees to serve probation. The court accepts his plea but does not immediately enter a conviction in the case.

The probation may be a simple as staying  out of trouble for six months or may require additional actions such as submitting to monthly drug tests, enrolling in school, maintaining work, completing community service, or even spending weekends in jail.

If the defendant successfully completes the probation, then the case may be dismissed. If he screws up the probation, the court can use his plea to enter a conviction against him.

Even the EEOC has said that the employer’s consideration should be whether it is reasonable to believe that the individual engaged in the underlying conduct.

If the individual pleaded guilty or no contest, most employers believe it reasonable to believe that the individual engaged in the underlying conduct.

Some states have other dispositions such as pre-trial diversions or first-time offender programs. These often have pleas and probation conditions similar to deferred adjudication.

When in doubt as to the outcome of a case, employers should ask Imperative and possibly their legal counsel for assistance in understanding the local laws.

In most states, an employer can legally consider deferred adjudications and other outcomes in making their hiring decision. We recommend that the criminal history inquiry include those kinds of cases.

Dismissed Cases and Arrests

Employers often believe that they cannot consider dismissed cases or arrest records. In most states, this is not true.

Cases are dismissed for a variety of reasons. Sometimes the defendant agrees to pay the victim restitution. Other times, they agree to attend anger management classes or fulfill other terms of probation (as in a deferred adjudication).

And while it is true that the fact of an arrest, in and of itself, does not mean that the individual engaged in the underlying conduct, it may warrant additional research by the employer before disregarding it.

When discussing arrests, the EEOC has said that the employer should determine whether it is reasonable to believe that the individual engaged in the underlying conduct.

Arrests may not turn into criminal cases for a variety of reasons. A common example would be where the complaining witness refuses to cooperate with the investigation. This is common in domestic violence cases.

Our recommendation to employers is, whenever the alleged underlying conduct is of  of concern, ask Imperative to obtain additional information such as police reports and court documents so that you can make an informed decision about the underlying conduct.

Offense Age

Under federal law and all but a few state laws, employers can consider an applicant’s entire criminal history, regardless of how long ago it occurred.

Of course, this does not mean that all older offenses are equally relevant, or relevant at all, to employers’ considerations. This will depend on the applicants’ experiences and behavior since the offense, the nature of the offense, and its relationship to the position.

For instance, an applicant with a fifteen-year-old DWI conviction but no other criminal history and an acceptable employment history since the offense is likely not a high-risk candidate for a delivery-driver position.

However, a fifteen-year-old sexual assault conviction may make an applicant high risk for a patient-care position in a nursing home. Again, the details of the offense and the rest of the applicant’s history, experience, and skill should also be taken into account.

Because employers cannot evaluate information about which they are unaware, Imperative suggests that employers not limit their inquiries based on the age, except in jurisdictions that have specific limitations about what employers may ask or consider.

What to Ask

We recommend preceding the criminal history inquiry with a statement that the employer will not automatically exclude applicants based upon criminal history without first reviewing the details.

Follow that statement with a warning that failure to accurately and fully answer the question may result in their elimination from consideration or termination from employment.

Government contractors or companies in regulated industries should ask if the individual has ever been sanctioned, excluded, or otherwise prohibited from participating in any government-regulated program. Often, these kinds of infractions aren’t addressed elsewhere in the application process.

For the reasons described above, Imperative suggests that the actual criminal history inquiry ask for as much information as legally allowable under the laws and ordinances in the jurisdictions where the company operates.

Multi-location employers should pay attention to the criminal history consideration limitations in each jurisdiction in which they operate. Often, the limitations in one jurisdiction can be addressed without watering down the inquiry for other less-regulated jurisdictions.

Review our free sample criminal history inquiry for a good starting place.

Individualized Assessment

Many employers have thoughtfully been using the “Green factors” along with other relevant considerations to evaluate applicant and employee’s criminal histories successfully for almost 40 years.

However, in their 2012 guidance, the EEOC suggested an additional formal process called “individualized assessment” whereby the job applicant has an opportunity to explain why the employer’s criminal history policy should not apply to the applicant.

The guidance lists specific pieces of information that an applicant might provide and that an employer might consider in evaluating whether to make an exception to their policy. These include “the facts or circumstances surrounding the offense or conduct” (the applicant’s side of the story), the former offender’s rehabilitation efforts, and character references. They also include more objective factors such as the number of convictions and the applicant’s employment history.

In order that the applicant has opportunity to present their criminal history in context, we recommend including a space for the applicant to provide that information with the criminal history inquiry.

How to Ask

Our sample criminal history inquiry is a separate document that can be provided to the applicant with the application form or, if required, later in the selection process.

This makes the timing of the inquiry flexible according to local ban-the-box laws.

Having the criminal history information as a separate document has the additional benefit of allowing the human resources department to separate the information from the application when distributing it to hiring managers. Even information that is irrelevant to the job can be embarrassing to the applicant, limiting its distribution to those with a strict need-to-know, protects the applicant’s (and potential future-employee’s) privacy.

Regardless of whether an applicant discloses criminal history, we recommend that employers follow up with applicants about their criminal history during the interview, where not prohibited by a state or local ban-the-box law.

If the applicant has disclosed criminal history information during the application or interview process, this may mean asking for clarifying information about the underlying conduct and the outcome of the case. It may also be instructive to ask the applicant about what they learned from the experience or how it affected their subsequent decision making.

If the applicant has not previously disclosed information or denied having any criminal history, the interviewer should explain that the company conducts thorough background investigations (you are an Imperative client after all!) and though the disclosure of criminal history information will not necessarily cause them to be excluded from employment, failure to reveal the information will be considered falsification of their employment application.

Our experience is that some applicants will disclose only partial information about their past offense history. Be sure to pass along to Imperative the details an applicant provides so that we can verify them – particularly any information about the circumstances surrounding an offense of relevance to the hiring decision. We can pull case copies from the court to try to verify those details.

This article is an excerpt from Imperative’s free ebook, Seven Steps to Making Confident Hiring Decisions: Preventing Loss, Liability, and Litigation While  Keeping Criminals, Creeps, and Crazies Out of Your Company.

Download Seven Steps to Confident Hiring Decisions