Q: I’m in the process of hiring for an administrative position and I’m reviewing applications from different sources. I was asked by one of those sources whether I would consider an application from someone with a criminal record. Before responding yea or nay, I want to know what the offense was. Am I legally allowed to ask that?
A: The short answer is yes, not only are you allowed to ask, you would be remiss not to. Here’s why.
As an employer you have a right -and a duty- to make informed hiring decisions. Learning about an applicant’s history is part of it.
If you were doing criminal and background checks as part of your hiring process as many businesses now do –or asking “the crime question” on your application– you were going to find out whether someone has a record anyway. So this is not protected information, it’s there for the asking.
In your case though, the more relevant question might be, “If I don’t feel comfortable with the offense am I obligated to consider them for employment?”
It depends. As an employer, you can make a decision not to hire someone based on their criminal record, but a conviction alone cannot be grounds for automatic rejection. The decision must consider relevant factors such as:
- The type of offense committed
- How it relates to the job in question
- Whether there are repeat offenses
- The number of years since last conviction
For example, if the position you’re hiring for provides access to customer credit card data and you have an applicant who was convicted of embezzlement three years ago, you may be justified in not offering a job. Whereas, if the same applicant was instead convicted of a DUI and your position doesn’t even require driving, that may not be a deal breaker. See the difference?
Lastly, some context. Applicants with arrest records and convictions haven’t always gotten a fair shake and new laws and practices are trying to address this. The customary question on employment applications has evolved from “Have you ever been arrested”, to “Have you ever been convicted of a felony” to the current movement in several counties and states that doesn’t even ask the question until much later in the hiring process. The movement is called “Ban the Box”. The feds already practice it. Hope this helps.
Eva Del Rio is creator of HR Box™ – tools for small businesses and startups. Send questions to Eva@evadelrio.com
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