Hiring and Interviewing: Arrests and Convictions

How do you ask about arrests and convictions?

You want to feel safe and secure about whom you surround yourself with in the workplace, but how in-depth are you allowed to go when hiring a prospective employee? And can you refuse to hire a job applicant because he or she has a prior arrest or conviction?

Arrests

According to the Equal Employment Opportunity Commission (EEOC), if you ask questions about an applicant’s arrest record, you may be liable for employment discrimination. The EEOC, along with many states, prohibits inquiries about arrest records because requesting such information tends to discourage applicants in protected classes, such as minorities, from applying for jobs in the first place.

Some courts have approved of employers basing employment decisions on the underlying conduct and circumstances that led to an arrest, rather than the arrest itself, but to avoid a potential charge of discrimination, avoid asking whether an applicant has been arrested.

 Convictions

Applicants may be asked about prior convictions as long as they are job-related. In order to reject an applicant because of a prior conviction, the EEOC requires that the decision be based on business necessity, taking into account the nature and the severity of the past conviction, when the past conviction occurred and how the past conviction relates to the applied-for position.

In order to avoid a potential claim for negligent hiring or negligent retention, consider asking about prior convictions. Make sure your application contains:

• A statement asking whether the applicant has ever been convicted of a crime other than a minor traffic offense,
• A warning that misstatements or misrepresentations on the application will constitute immediate grounds for non-hire or termination, and
• An acknowledgement by the applicant that he or she agrees to a background investigation including a background check.

For more information, visit the EEOC’s website.