Are there federal and/or state laws prohibiting employers from asking applicants about arrests and convictions?

 

January 11, 2019
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No federal law clearly prohibits an employer from asking applicants about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups. The Equal Employment Opportunity Commission (EEOC) has released guidance on employer use of arrest and conviction records that seeks to clarify the Commission's longstanding position on the limited use of these records in employment. Although there is no federal prohibition on asking applicants about criminal history, the EEOC states, "as a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."

Several state laws and local ordinances limit the use of arrest and conviction records by prospective employers. Commonly referred to as ban the box laws, these restrictions prohibit the employer from asking an applicant any questions about criminal records on the employment application or early on in the screening process. Other state laws restrict the employer's use of arrest or conviction data in making an employment decision except in limited circumstances, or may require such questions only be asked after an offer of employment has been made. Employers should investigate any state or local laws prior to inquiring about an applicant's criminal history.

In addition, the Fair Credit Reporting Act (FCRA) requires an employer using a third party to conduct "consumer reports" such as criminal histories to advise the applicant in writing that a background check will be conducted and obtain the applicant's written authorization to obtain the records. Certain other disclosures are required upon the employee's request and prior to taking any adverse action based on the reports obtained. 

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