Criminal Records, Employment and Employment Applications -1©

  
Jobs Employment, Career Job, Employment Job

By Les Rosen
President, Employment Screening Resources

Special Report:

Employers have become increasingly aware of the importance of knowing if an applicant has a criminal record. Employers have a legal duty to make reasonable inquiries about who they hire, and to provide a safe workplace. An employer who hires a person with a criminal record can be found liable for negligent hiring where the hiring decision results in harm, and it could have been avoided by a simple criminal record check. Checking criminal records demonstrates Due Diligence and is also an important preventative measure to protect against workplace violence.

One of the most effective tools an employer has is the use of an application form in the hiring process.  An application enables an employer to directly ask an applicant if they have a criminal record  The advantage is that an employer can use a well worded application form to discourage applicants with something to hide, and to encourage applicants to be open and honest.

Unfortunately, many employers use language in their applications that is either to narrow, too broad or too ambiguous.   Each of these mistakes can put an employer in difficulty.

1.  Too Narrow:  An example of a question that is too narrow is to only ask about felonies and not misdemeanors, which can be very serious.  Under California law, for example, most employers would want to know if an applicant had a convictions for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that they have not been convicted of a felony, even though they have serious misdemeanor convictions that an employer needs to know about. 

2.  Too Broad:  On the other hand, some employers ask questions that ar so broad that it improperly covers matters that are protected.  There are a number of limitations under California and Federal law concerning what an employer may legally ask about or discover concerning an applicant's or employee's criminal records. In fact, it can be a misdemeanor in California for an employer to knowingly violate some of these rules. Furthermore, if an applicant is placed in a position where they are forced to reveal information about themselves that they are legally entitled not to disclose, an employer can actually be sued for "defamation by publication"  In other words, by being forced to say something defamatory about themselves, an applicant may be able to file a lawsuit for defamation against the employer.

3  Too Ambiguous:  The third mistake is to ask an applicant, "Have you ever been convicted of a felony or serious misdemeanor,; or a similar question that calls for an opinion  The problem is that an applicant is being called upon to make a judgment about their own offense  Whether a misdemeanor, for example, is serious can call for a very complex legal and factual determination on which lawyers could disagree.  By asking a question that is ambiguous and leaving waffle room, an applicant can argue that in their mind, the offense was not serious and that their "no' answer was truthful.  That is why the question cannot contain any ambiguity.

Here are some of the limitations involved. Although not every state has rules as restrictive as California, employers in all states should   be careful to make ensure that their applications are legally compliant.

An employer may NOT ask about arrests or detentions that did not result in a conviction.
An employer may only consider convictions or pending cases;
There are certain limitations on misdemeanors, crimes that have been sealed or otherwise expunged, cases where a person participated in pre-trial diversion, or certain minor marijuana convictions;
An employer should NOT automatically deny employment due to a criminal conviction, but should consider the nature and gravity of the offense, whether it is job related, and when it occurred.

ESR generally recommends the following language for California employers based upon language recommended in Human Resources publications. The language is as follows:

Have you ever been convicted for a crime? (Exclude convictions for marijuana-related offenses for personnel use 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, please briefly describe the nature of the crime(s), the date and place of conviction and the legal disposition of the case. This company will not deny employment to any applicant solely because the person has been convicted of a crime. The 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.

Are you currently out on bail, the  subject of a current warrant for arrest   or released on your own recognizance pending trial? Yes ___ No ___