Answering Interview or Application Questions about Prior Convictions/Arrests

John Joseph Westerhaus

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Employment / Labor Attorney

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Posted over 1 year ago. 1 helpful vote

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1

What may employers ask? (Federal law)

Generally speaking, employers ARE allowed to look into an applicant's arrest and conviction records, and many do so to protect their business, their bottom line, and prevent negligent hiring lawsuits. A survey showed that 92% of responding employers subjected all or some of their job candidates to criminal background checks. However, employers cannot discriminate based on race, color, religion, sex, or national origin, and the use of arrest or conviction data does sometimes result in unlawful discrimination. To avoid discrimination actions under Title VII of the 1964 Civil Rights Act, the EEOC advises employers to consider (1) the nature and gravity of the offense (2) the time that has lapsed since the offense and (3) the nature of the job in determining whether the offense should matter for employment purposes. At bottom, however, employers can (and often do) inquire about convictions and arrests at the application or interview stage of the employment process.

2

What may employers ask? (State law)

Some states offer additional protections for employees. For instance, "[t]he California Labor Code and the California Code of Regulations provide that, for the most part, private employers are not supposed to ask job applicants about: Arrests that did not lead to convictions, convictions that have been expunged, juvenile sustained petitions, juvenile arrests that have been sealed, and arrests for which [a person has] successfully completed drug diversion under PC 1000." However, many states offer little to no protection beyond the federal minimums. This includes Missouri, the state where I am licensed. Ask an attorney in your jurisdiction for state-specific guidance, as a 50-state comparison is beyond the scope of this guide.

3

What will a background check reveal?

According to the EEOC's employer guidance for arrests and convictions, employers can obtain criminal history from a wide variety of sources, including but not limited to court records, law enforcement and corrections agency records, registries or watch lists, state or federal criminal databases, the internet, or references. However, because a significant number of state and federal criminal record databases are incomplete and contain inaccuracies, it is hard to know exactly what will be reported in any individual case. While employers can search these records themselves, they may rely on a third-party "consumer reporting agency" (CRA) to provide this information. The Fair Credit reporting Act prohibits CRAs from reporting arrests that did not result in entry of a judgment of conviction more than seven years old, but convictions may be reported indefinitely. The CRA records may also contain errors or omissions, making it difficult to predict the report.

4

Honesty is the best policy.

Employers are usually allowed to ask about convictions and arrests, and it is impossible to predict what a given background check will reveal. So what should you do? Simple. Tell the truth. It is always better to disclose something on an application and be given an opportunity to explain. The employer might believe a person has problems with the law based on a disclosure, but the prospective employee can explain circumstances, lessons learned and demonstrate integrity, personal responsibility, and honesty by telling the truth. By contrast, failure to disclose gives the employer cause to consider the potential employee untrustworthy AND a criminal, which is obviously a worse situation. Moreover, the employer would have grounds to terminate them after hiring, based on the falsehood on the application. At bottom, there is no situation so bad that lying about it won't make it worse.

5

Answer ONLY the question asked.

Applications for jobs are not too different from tests in school. There is no need to give the right answer to all possible permutations of a question -- just the one being asked. There are no extra points given for unnecessary detail. Thus, if the employer ask if you've ever been arrested, and you have been, then answer truthfully. If they ask if you've ever been convicted, and you have been, answer truthfully. But if they ask if you've been convicted . . . and you were arrested and charged, but completed a diversion program that resulted in the charges being dropped, this isn't a conviction. So answer no, truthfully -- and resist the urge to "defend" your answer by explaining WHY the answer is "no" instead of "yes". And if they ask if you've ever received deferred adjudication, the answer becomes "yes" instead of "no". Answer the question asked -- and only the question asked -- and do so truthfully.

Additional Resources

EEOC: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm California reference: http://www.shouselaw.com/conviction-job-application.html#1 UK Rules: http://www.lawontheweb.co.uk/Human_Rights_Law/The_Right_to_Privacy/Disclosure_of_Spent_Convictions

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