HR Management & Compliance

Criminal Histories: What Not to Ask

Knowing what questions to ask applicants is key to finding the right people for your company. But it’s just as important to know what questions not to ask to avoid potential lawsuits. For example, asking job applicants about personal information like marital status, sexual orientation, and pregnancies can be one of the quickest routes to the courthouse.

In California, employers are also not allowed to ask applicants (or employees) about certain criminal background information. Understanding what information is off limits is critical, especially if you’re conducting background checks. Specifically, employers are prohibited from asking current and prospective employees about:

  • Arrests or criminal detentions that did not lead to a conviction
  • Participation in any pre- or post-trial diversion program
  • Marijuana convictions that are more than two years old

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Not only are employers prohibited from asking about this kind of criminal background information on written applications or in interviews, but even seeking the information—whether or not you actually obtain it—can land you in hot water. HR professionals should take care not to make overly broad criminal background check requests.

If you do obtain prohibited criminal background information, even if the employee voluntarily discloses it, California law prohibits using the information as a basis for any employment-related decision. This is true even if the applicant or employee initially lies about the existence of a non-conviction arrest, participation in a diversion program, or a stale marijuana conviction. If you do act on the information, the employee or applicant may be entitled to recover treble damages (i.e., three times the actual damages) in a lawsuit.

Note that California Employer Advisor offers its subscribers discounted background checks in partnership with Employment Screening Resources—done the right way.

CEA subscribers can also access our sample background check policy for employees and sample background check policy for managers/supervisors.

Start a free 7-day trial to instantly access these policies now.

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