The following question was recently posted in an HR-related discussion group.

State is Virginia.

Company policy, we do not hire employment applicants w/felony convictions.   My question is about how the felony is disclosed.   An applicant disclosed on their employment application, they had a felony conviction about 10 years ago.

The only reason we would not move forward with this applicant is the felony conviction listed on the employment app.   We have not pulled a consumer report, this is just based off the application.

Do we still need to go through the process & pull the consumer report and then send out applicable adverse action notification because we are basing our decision on information that is contained in a consumer report (criminal background reporting)?

My response:

To answer your question directly, no, you do not have to run a background check or otherwise verify the information that the applicant gave you about their criminal history before eliminating them based upon their disclosure.

On the other hand, whenever an applicant discloses criminal history information that does not eliminate them from consideration and you are considering making them an offer, you should always complete a thorough background investigation. (Virginia is not a state that prohibits inquiry into an applicant’s criminal history prior to making an offer.)

We often see that applicants will reveal some portions of their criminal history but will fail to provide accurate details of what happened or fail to disclose other more serious cases.

However, a blanket ban on felony convictions, while not expressly illegal, is likely to create a disparate impact on individuals in a protected class (primarily based on color or race) which would constitute illegal discrimination under Title VII of the Civil Rights Act.

Even if your candidate is not in a protected class, I’d question the wisdom of this policy. Do you really want to eliminate an otherwise qualified candidate who received their third conviction for driving while intoxicated fifteen years ago – particularly if the position does not involve driving or other safety-sensitive responsibilities?

Also, there are many misdemeanors about which you may be concerned. For instance, for a position that deals directly with the public, I may be very concerned about a recent misdemeanor assault case but less concerned about an older felony drug case.

If you want to review your policy on the review of criminal history information, I suggest that you take a look at our free ebook, Seven Steps to Making Bulletproof Hiring Decisions: Preventing Loss, Liability, and Litigation While  Keeping Criminals, Creeps, and Crazies Out of Your Company. It includes tools for determining which kinds of past offense are of most relevance to different kinds of jobs.

Do you have a question about the use of criminal history information or background investigations? Feel free to email them to!