States Limiting Inquiries About, Uses of, Workers' Criminal History

ARLINGTON, Va.—A growing number of states have recognized that an individual’s criminal history may have little, if any, relevance to his or her qualifications for a job or work performance, Jill Rosenberg, an attorney with Orrick, Herrington and Sutcliffe in New York City, told attendees July 23, 2015, at an employment law conference presented by the National Employment Law Institute. Therefore, she said, many states are passing laws that prohibit or restrict employers from making employment decisions based on certain information within an individual’s criminal history, including convictions and arrests. In addition, states and local governments are joining the “ban-the-box” movement to limit when and how employers may question applicants for employment about their criminal history.

This is in contrast to federal law, which does not prohibit employers from asking about, or making an employment decision based on, the criminal conviction record of an applicant or employee; it only prevents an employer from using the criminal history in a discriminatory way, such as by treating individuals with similar criminal records differently because of a federally protected characteristic like race or gender, Rosenberg noted.

Given this trend in state and local lawmaking and the wide variations among numerous state and local laws, “employers, especially those who operate in multiple jurisdictions, need to keep up on developments in this area,” Rosenberg said.

Relevance of Conviction

States and municipalities that protect individuals with criminal convictions generally look at three factors, Rosenberg noted:

• What type of crime was committed?
• How long ago was the crime committed?
• How relevant is the crime to the job at issue?

As to the type of crime committed, some states prohibit use of conviction history based on the class of the offense. In Florida, for example, applicants cannot be disqualified from employment because of a previous conviction unless the crime was a felony or first-degree misdemeanor and directly relates to the employment sought; or if the crime was a controlled substance offense for which the applicant has not completed all prison terms or complied with any drug treatment ordered. In California, employers may not consider convictions for the possession of small amounts of marijuana, defined as less than one ounce. Ohio employers may not consider marijuana misdemeanors.

“We are likely to see more laws about crimes involving marijuana use,” Rosenberg said.

Concerning when the crime was committed, some jurisdictions place time restraints on the use of convictions. In Massachusetts, employers may not inquire about convictions more than five years old. Washington and the District of Columbia prohibit inquiries into convictions more than 10 years old. Some states apply a hybrid approach of time and classification restrictions for some offenses. Employers in Kentucky, for example, cannot inquire into misdemeanors that are more than 5 years old. In California, employers are not permitted to ask about marijuana-related convictions more than two years old.

In determining the relevance of the conviction, “This is where the employer must exercise judgment,” Rosenberg said. Relevancy tests require the employer to determine, on a case-by-case basis, whether the conviction is relevant to fitness for the specific job at issue, she explained. Standards vary from state to state. For example, Wisconsin prohibits reliance on a conviction unless it is “substantially related” to the job at hand, while Pennsylvania permits an employer to base a hiring decision on a conviction if it is merely “related to the position sought.”

At the other end of the spectrum, New York law requires employers to conduct an eight-factor analysis, including considerations of public policy, the nature of the job duties, the seriousness of the offense and the applicant’s age when the crime was committed.

Distinguishing Pending Arrests

Some states distinguish between arrests that did not result in a conviction and pending arrests. In most of these states, Rosenberg said, an employer may not ask about or take adverse action based on an individual’s arrest record if the arrest is no longer pending and was resolved favorably to the individual. However, employers may ask about a pending arrest or an arrest that resulted in a conviction.

In Wisconsin, employers may refuse to employ, or suspend from employment, any individual who is subject to a pending criminal charge, but only if the circumstances of the charge substantially relate to the circumstances of the particular job.

Ban-the-Box Movement

More than 100 cities and counties and 18 states have placed restrictions on an employer’s ability to inquire into an applicant’s criminal history, including the content and timing of such questions, according to the National Employment Law Project. The 18 states are: California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont and Virginia.

These provisions are designed to encourage employers to focus on individual assessments of candidates and to avoid candidates being pre-judged or eliminated from consideration based solely on their criminal history, Rosenberg said. The laws usually exempt public safety positions and positions where a criminal background check is required by law.

The most common type of ban-the-box law is one that permits inquiries about an applicant’s criminal history only after a job offer has been made.

This may be frustrating for hiring managers, who may feel like, “We go through the whole interview process and then we can’t hire the person,” Rosenberg said.

“But the risk is exaggerated. I don’t think that this actually happens very often,” she concluded.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.