When is it legal to ask applicants about crimes?

Has your state banned the box?

Across the country, states are joining a slow, but steadily growing movement to ban employers from requiring workers to disclose their criminal history in initial job applications. Illinois is the latest state to pass so-called ban-the-box legislation, which prohibits employers from asking job applicants if they have criminal records until the final stages of the hiring process.

It’s important to note that these laws don’t typically prevent employers from using criminal history as a factor in hiring decisions. Instead, they dictate when employers can inquire about criminal history.

Since there’s no national legislation on this issue, ban-the-box laws have become a maze for employers that operate in multiple regions. They vary widely across states, and in many places even cities and towns have implanted their own legislation.

Illinois is one of five states that prohibit both public and private employers from asking applicants about their criminal history before confirming that they are qualified for the position. Other states with laws that applies to private employers include Hawaii, Massachusetts, Minnesota, and Rhode Island.

Seven more states prohibit states—California, Colorado, Connecticut, Delaware, Nebraska, New Mexico, and Maryland—have similar legislation that only applies to public employees.   

What’s an employer to do?

If your company is based in one of the five states that ban the box for private employers, you should remove any questions about criminal history from your initial screening process immediately. Penalties vary across states, but to take Minnesota as an example, beginning in 2015, employers that violate the law by asking applicants about their criminal history too early in the process will be liable for up to $2,000 per month in fines. By revamping your applications and hiring process, you can avoid the pain of steep penalties.

Even if your company doesn’t operate in any ban-the-box states, you should still consider removing criminal history questions from your application. At least for now, ban-the-box laws are on the rise, and avoiding early criminal record inquiries will prevent your company from running afoul of the law if you expand to new markets or state and local laws change.

When can I check criminal records?

In ban-the-box states, employers are generally allowed to ask if an applicant has a criminal record or to run a background check, as long as they wait until they have already established that the candidate is qualified for the position. In Minnesota, , employers must wait until they reach the interview stage or make a conditional job offer before inquiring about an applicant’s criminal history.

Ban-the-box laws typically have exemptions that allow employers to ask about criminal history early in the hiring process if state or federal law requires them to run background checks on candidates. Employees who work with children or vulnerable adults are the most likely to face strict background check requirements.

What if a worker has a criminal record? Am I required to hire them?

No, you don’t have to hire workers with criminal records. Nonetheless, you do need to be careful about when you take criminal history into account when making a hiring decision.

Ban-the-box laws aim to delay access to criminal records, so that employers have more information and context about a candidate before seeing their criminal history. Once an employer knows about a candidate’s criminal record, other laws and regulations restrict whether they can use that information as a factor in making hiring decisions.

Employers should be wary of discriminating against workers with criminal records. If your company policies disproportionately impact people of color or ethnic minorities, Equal Employment Opportunity Council guidelines say the policy must be “job related and consistent with business necessity.”

For example, if a candidate was convicted of driving under the influence several years ago, a trucking company might have a job related reason not to hire them. If the same candidate applied for a bank teller, however, it is unlikely that her prior record would be considered job related.

Conclusion

State and local laws governing when you may ask an applicant about their criminal record and under what circumstances you may use that information to make a hiring decision vary so widely. It is essential that businesses contact a qualified employment attorney or human resources professional to ensure their hiring practices comply with the law. 

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