Inquiring about an applicant’s criminal history is a highly regulated aspect of the hiring process, subject to federal, state, and local statutes. Employers must navigate these rules carefully, as laws are frequently updated and vary significantly depending on the jurisdiction and the nature of the job. Proceeding without a comprehensive understanding of the legal landscape can expose organizations to significant discrimination claims and penalties.
Federal Guidelines on Criminal History Use
The Equal Employment Opportunity Commission (EEOC) provides guidance on how using criminal records aligns with Title VII of the Civil Rights Act of 1964. The primary concern is that neutral policies excluding all individuals with a criminal record can result in unlawful disparate impact discrimination. This is because certain racial and ethnic groups have disproportionately higher rates of arrest and conviction.
To lawfully use criminal history in hiring, an employer must demonstrate that the exclusion is job-related and consistent with business necessity. This standard requires proving a direct link between the specific criminal conduct and the risks posed by the job’s duties. For instance, excluding a candidate with a recent embezzlement conviction from a financial position may meet this standard, while excluding them from a role with no financial oversight might not.
The EEOC also addresses disparate treatment discrimination, which occurs if an employer treats applicants with comparable criminal histories differently based on a protected characteristic. An arrest, standing alone, generally never meets the “job related and consistent with business necessity” standard because an arrest does not prove that criminal conduct has occurred. Therefore, the focus must remain on whether the past conduct directly affects an individual’s ability to perform the duties of the position safely and effectively.
Understanding Ban the Box Timing Rules
“Ban the Box” (BTB) laws directly regulate the timing of when an employer can inquire about an applicant’s criminal history. These regulations are designed to ensure applicants are judged on their qualifications before their criminal history is revealed. The core requirement of BTB is removing the question about criminal convictions from initial job applications.
Jurisdictions enforcing BTB typically prohibit the inquiry until later stages, such as after an initial interview or, most commonly, after a conditional offer of employment has been extended. Moving the inquiry to a later stage reduces the chance that an applicant will be summarily disqualified before their skills are considered. Employers must determine the specific timing rules of the locality where the job is located to ensure compliance.
The application of BTB rules often varies depending on the employer’s size and whether they operate in the public or private sector. For example, some municipal ordinances require private employers to wait until a conditional job offer has been made, while state laws may only require waiting until after the interview stage. Multi-state employers frequently adopt a uniform policy of delaying inquiry until after a conditional offer, as this approach is acceptable in nearly all jurisdictions.
Evaluating Criminal History Through Individualized Assessment
Once an employer obtains information about an applicant’s criminal history, federal guidance requires an individualized assessment before making a disqualifying decision. An employer cannot automatically disqualify an applicant solely based on a conviction record. This assessment ensures the decision is narrowly tailored to the job and the specific circumstances of the applicant, helping avoid Title VII liability.
The individualized assessment process focuses on three factors, often referred to as the “Green Factors.” The first factor involves examining the nature and gravity of the offense, evaluating the seriousness of the crime, such as whether it involved violence, theft, or dishonesty. The employer should consider the legal elements of the crime and the extent of the harm caused.
The second factor considers the time that has passed since the offense occurred or the sentence was completed. A conviction from many years ago is less likely to be relevant than a recent offense, and a lengthy period of rehabilitation weighs in favor of the applicant. The final factor requires reviewing the nature of the job. The employer must determine if the criminal conduct is directly related to the specific duties of the position.
The assessment should also provide the applicant with an opportunity to explain the circumstances of their criminal record and present evidence of rehabilitation or mitigating factors. This might include details about the candidate’s age at the time of the offense, post-conviction employment history, and any education or training completed. The employer must consider whether this information shows that the exclusionary policy, as applied to them, is not job-related and consistent with business necessity.
Required Procedures Under the Fair Credit Reporting Act
When an employer uses a third-party Consumer Reporting Agency (CRA) to conduct a background check, the federal Fair Credit Reporting Act (FCRA) imposes strict procedural requirements. Before initiating the check, the employer must provide a clear written disclosure to the applicant, stating that a background report may be obtained for employment purposes. The applicant must then provide written authorization for the check to proceed.
If the employer intends to take an adverse action, such as denying employment or rescinding a job offer, based partially on the report, the FCRA mandates a two-step notification process. The first step is the “pre-adverse action notice,” which informs the candidate that a finding may negatively affect the hiring decision. This notice must include a copy of the background report and a written summary of the applicant’s rights under the FCRA.
The pre-adverse action notice provides the applicant with an opportunity to review the report and dispute any inaccuracies before a final decision is made. The employer must wait a reasonable amount of time after sending this notice before taking the final step, typically no less than five days. The final step is the “adverse action notice,” which formally notifies the applicant of the denial, including contact information for the CRA and a statement that the agency did not make the hiring decision.
Key State and Local Restrictions on Inquiries
Many states and municipalities impose restrictions on criminal history inquiries that go beyond federal guidelines and “Ban the Box” laws. These often limit the type of information an employer is legally permitted to consider, requiring checking the specific regulations for the job’s location. A common restriction prohibits employers from inquiring about arrests that did not lead to a conviction, unless the case is still pending.
Many laws also forbid considering records that have been legally sealed or expunged. In certain states, “clean slate” laws automatically seal or expunge specific criminal records after a set period, preventing CRAs from reporting them. This prevents past legal issues that did not result in a finding of guilt from being used in employment decisions.
Furthermore, some jurisdictions have established “look-back” periods, restricting employers from considering convictions older than a specified timeframe, such as seven years. While federal law places no limit on the reportability of criminal convictions, state laws often impose limits of seven or ten years, particularly if the job’s salary is below a certain threshold. A growing number of states and municipalities also restrict inquiries into certain marijuana offenses.
Developing a Compliant Hiring Policy
Developing a compliant hiring policy requires integrating federal, state, and local requirements into a consistent process. The first step involves reviewing all job applications and portals to ensure the removal of any initial criminal history inquiry, aligning with “Ban the Box” timing rules. Hiring managers must receive regular training to understand when they are legally permitted to ask about an applicant’s background and what information is restricted.
Documentation is an element of compliance, particularly for the individualized assessment. Every decision to disqualify an applicant based on criminal history must be documented, detailing how the “Green Factors” were applied and why the specific conviction was deemed job-related. This documentation provides a defensible record if the decision is later challenged by the applicant or a regulatory agency.
Employers must also establish standardized procedures for the Fair Credit Reporting Act’s disclosure and notice requirements, ensuring the timely delivery of pre-adverse and adverse action letters. Given the complexity and frequent changes in jurisdiction-specific laws, consulting with local legal counsel is a final step to confirm that the policy meets all applicable standards.