HR Management & Compliance

Criminal Records of Applicants and Employees: New Case Points Out Danger of Asking About Arrests and Convictions; What You Can and Can’t Ask About Criminal Records

What You Can and Can’t Ask About Criminal Records

As the accompanying story highlights, you could be hit with big damages for asking illegal questions about a person’s criminal record. To help you steer clear of trouble, the following language can easily be modified for use in your application forms or when interviewing prospective or existing employees.

Note that although you’re permitted to ask applicants about most convictions, you can get into trouble under anti-discrimination laws if you have a policy of automatically denying employment to anyone ever convicted of a crime. The policy could have the effect of screening out applicants from protected groups that in some instances may have statistically higher conviction rates. Rather than having a blanket no-hire policy, consider whether a direct relationship exists between the person’s offense and the responsibilities of the job.

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Sample Language to Include in Application Forms

Have you ever been convicted of a crime? (Exclude convictions for mari- juana-related offenses more than two years old; convictions that have been sealed, expunged or legally eradicated; and misdemeanor convictions for which probation was completed and the case was dismissed.)

Yes _____ No ______

If yes, briefly describe the nature of the crime(s), the date and place of conviction and the legal disposition of the case.

[Company] will not deny employment to any applicant solely because the person has been convicted of a crime. [Company], however, may consider the nature, date and circumstances of the offense as well as whether the offense is relevant to the duties of the position applied for.

Off-Limits Questions

Here are three common illegal questions you should avoid:

  1. Have you ever been arrested?


  2. What is your arrest record?


  3. Have you ever been convicted of a misdemeanor? (This question is acceptable if you limit it to cases where probation was not completed.)