Can You Ask An Applicant If They Can Pass A Background Check In An Interview

'Can I Ask Most Criminal History?' And Other FAQs About Groundwork Checks

Many states and local jurisdictions take enacted laws that restrict employers from asking an applicant well-nigh his/her criminal groundwork on awarding forms. Some go fifty-fifty further, restricting these types of questions until after the employer makes a conditional job offering. These restrictions are oftentimes referred to as "ban the box" laws.

Below are answers to frequently asked questions about criminal background checks and ban the box laws:

Q: What is a "ban the box" law?

A: "Ban the box" is a term given to legislation that regulates when an employer can inquire about an bidder's criminal history, and in some cases dictates what steps the employer must take once they become aware that an bidder has a past criminal conviction. Quite literally, it refers to the "check box" that many employers accept on their standard employment application that asks applicants whether they have always been convicted of a criminal offense.

Q: What states currently have ban the box laws?

A: Currently, Connecticut (effective January 1, 2017), the District of Columbia, Hawaii, Illinois, Massachusetts, Minnesota, New Bailiwick of jersey, Oregon, Rhode Island, and Vermont take ban the box laws covering private employers.

Note: Many local jurisdictions take similar laws and some additional country ban the box laws use to public employers only.

Q: Are in that location exceptions to ban the box laws?

A: Each law is different, only many include exceptions, such every bit when federal or land police force requires the employer to exclude applicants with certain convictions. Check your country or local ban the box constabulary for specifics.

Q: Can I enquire applicants if they have been convicted of a crime? If so, when?

A: While no state prohibits employers from asking virtually criminal convictions entirely, in states and local jurisdictions with ban the box laws, employers must delay asking these types of questions until after in the pre-employment procedure. These laws differ on when exactly such inquiries may be fabricated. For instance, Minnesota'southward law generally requires employers to wait until a candidate has been selected for an interview before asking about criminal convictions. In Hawaii and the District of Columbia, employers must wait until after they accept made a conditional job offer.

Q: What is a conditional job offer?

A: Mostly, a provisional job offer is contingent on the satisfactory completion of sure steps, such as a background cheque, reference bank check, drug test, and proof of work eligibility. Any contingencies that could lead to the withdrawal of the offer should be conspicuously indicated in the written job offering.

Q: Are at that place restrictions on the types of criminal data that can be investigated?

A: Even in states without ban the box laws, state and/or local law may limit the scope of criminal history inquiries. For example, some laws limit inquiries to convictions that occurred inside the past few years or prohibit employers from request about sealed or expunged records.

Additionally, some states and local jurisdictions prohibit employers from asking about arrests and sure types of convictions. In these states and local jurisdictions, inform applicants of the information they will not be asked to disclose in response to criminal history inquiries.

Notation: The Fair Credit Reporting Act (FCRA), and similar state laws, have specific guidelines for conducting groundwork checks, including requiring that employers provide written notification to, and obtain dominance from, whatever individual bailiwick to background investigations. The FCRA also requires employers to follow sure steps when taking agin activity against an individual (e.thousand., failing to hire) based on the results of the investigation.

Q: What if my state doesn't accept a ban the box law? Should I still remove criminal history questions from my application grade?

A: While at that place is no federal police force specifically prohibiting employers from asking applicants if they've ever been convicted of a criminal offense, the Equal Employment Opportunity Commission (EEOC) recommends employers avert asking for this data on an application form. If and when employers do ask well-nigh convictions later in the selection procedure, the inquiries should exist job related and consistent with business concern necessity.

Q: What are my responsibilities once I learn that an bidder has been convicted of a crime?

A: EEOC guidance states an employer cannot simply disregard any bidder who has been convicted of a law-breaking. Instead, employers should show how the specific criminal bear, and its dangers, relates to the risks inherent in the duties of a item position.

The EEOC identified two ways employers tin can demonstrate that an exclusion based on a criminal conviction is job related and consistent with business necessity:

The employer validates the criminal conduct screen per the Uniform Guidelines on Employee Choice Procedures standards (if data virtually criminal conduct as related to subsequent piece of work performance is bachelor and such validation is possible); or
The employer: (a) develops a targeted screen because the nature and gravity of the criminal offense, the time elapsed since the conviction or completion of the judgement, and the nature of the chore; and (b) conducts an "individualized assessment" for people excluded by the screen to decide whether the policy as applied is task related and consistent with concern necessity.

Consider these guidelines and consult legal counsel as needed.

Q: What is an "individualized cess"?

A: The EEOC guidance recommends that the individualized cess consist of:

Notice to the private that he or she has been screened out because of a criminal conviction;
An opportunity for the individual to demonstrate that the exclusion should non be applied due to his or her item circumstances; and
Consideration of whether the additional data provided by the private warrants an exception to the exclusion.

Employers should consider a variety of factors to determine whether exclusion based on an individual'due south criminal record should be applied, including:

The facts or circumstances surrounding the offense;
The number of offenses for which the private was convicted;
Older age at the time of conviction, or release from prison (the EEOC notes that recidivism rates tend to decline equally an ex-offender's historic period increases);
Evidence that the private performed the aforementioned type of work, mail-confidence, with no known incidents of criminal conduct;
The length and consistency of employment history before and after the criminal offence;
Rehabilitation efforts (such equally didactics or training);
Employment or character references and whatever other information regarding fitness for the particular position; and
Whether the individual is bonded under a federal, state, or local bonding program.

Notation: Your state or local police may take boosted requirements for assessing criminal history information.

Q: Besides criminal history, are at that place any other types of data that may be off limits or restricted on application forms or in groundwork checks?

A: In many states and local jurisdictions, aye. For example, some states have enacted laws restricting employer admission to applicants' credit history. Recently, one land—Massachusetts—enacted a police force (effective July 2018) that includes a provision prohibiting employers from request about salary history on employment applications.

Conclusion:

Criminal history inquiries must be performed in accordance with federal, state, and local laws. Make certain you lot understand the rules that use to your concern before asking applicants virtually criminal history.