Don’t over react to ban the box legislation by totaling removing a question about an individual’s prior criminal convictions from your hiring process after accepting the initial application. We had a client so concerned about avoiding any liability associated with ban the box legislation that they removed the question about previous criminal convictions altogether.
If you remove the question entirely, then there is no method of proving an individual falsified your company’s employment application.
We believe people will behave in your employ the same way they have behaved in the past. We don’t mean that an individual who had a criminal conviction 28 years ago for a $40 fine be removed from the hiring process. The decision of how to handle an individual’s prior criminal convictions should be handled in accord with the EEOC’s Green Rules . They are:
- Consider the elapsed time between the date of the conviction and the date of application.
- Consider the applicant’s history of work since the date of the conviction.
- Consider the job-relatedness and business necessity of the criminal behavior as it relates to the job’s duties.
To our knowledge, there isn’t a jurisdiction in the country that has banned the question about prior criminal convictions altogether. Most jurisdictions do not want the question about prior criminal convictions to be on the initial application. However, please always consult competent employment legal counsel in helping to comply with applicable laws. Laws vary by state. But, to our knowledge,
Employers should construct timely and accurate job descriptions that clearly define the link between prior unacceptable past criminal behavior and the job relatedness and business necessity for removing individuals with such unacceptable past criminal behavior.
If an individual has prior unacceptable past behavior in their background that conflicts with the job description, the employer should provide an opportunity for an individualized assessment that allows the individual an opportunity to challenge the employer’s adverse hiring decision.
