Nearly Half of Employers Continue to Ask About Criminal History on Job Applications

About half (48 percent) of employers that conduct pre-employment background checks still have a question on their application forms inquiring about applicants' criminal histories, despite the growing momentum to "ban the box" on job applications.

Criminal records searches are used by 93 percent of employers that conduct prehire screening. But only 10 percent of employers wait until after making a job offer to ask about criminal history, according to Sterling Talent Solutions' 2017 Background Screening Trends & Best Practices Report. The 2017 survey was based on the responses of 507 employers that conduct background checks. Sterling Talent Solutions is a global background screening and onboarding firm headquartered in New York City.

More than half of respondents (55 percent) either direct candidates to check a box on the employment application if they have been convicted of a crime or ask about criminal history during the interview stage. Another 28 percent do not ask candidates about prior criminal history at all. In 2015, three-fourths of respondents said that their job applications included a question about a candidate's prior criminal history.

"I'm not surprised that half of employers still inquire early on—a vast majority of employers have been asking the question on the initial job application for quite some time, so in many cases, it's simply a legacy question that they haven't yet removed," said Clare Hart, CEO of Sterling Talent Solutions. She added that there are also organizations in regulated industries such as health care, transportation or financial services that need to know upfront whether potential candidates have certain convictions that would preclude them from being hired.

"It's important to note that ban the box is not a national directive, but a local or state directive," she said. "In a number of cases, those who have not been explicitly told they can't include the box, continue to include it."

When respondents were asked what they thought about ban-the-box laws:

• 36 percent stated that they only delay information that an employer learns anyway.
  
• 29 percent said the laws are fair to candidates.
  
• 24 percent said they are unreasonable for employers.
  
• 22 percent said they are reasonable for employers.
  
• 22 percent said ban-the-box laws are confusing.
  

The Equal Employment Opportunity Commission's (EEOC's) guidance in 2012 suggested employers remove this question from job applications, Hart said. Employers can expect to see more jurisdictions adopt ban-the-box measures, she added.

The survey also revealed:

• The majority of employers (59 percent) disqualify 5 percent or fewer applicants based on past criminal convictions.
  
• 14 percent of employers eliminate 20 percent or more applicants with criminal histories from consideration.
  
• A majority (67 percent) would proceed with a candidate evaluation after finding a conviction not divulged initially on an employment application, with most saying that they would give a candidate the opportunity to explain the record.
  

What HR Should Do

Asking for criminal history information on an application is no longer a best practice for most employers, said Brian Monahan, co-founder of Redwood City, Calif.-based GoodHire, an employment screening firm making a splash in the industry for its unconventional approach to what it calls "humanizing" background checks.

"Not only could it be unlawful to ask, with roughly 180 jurisdictions now having ban-the-box laws in effect, but savvy employers understand that proactively moving the inquiry to later in the hiring process both aligns with EEOC guidance and can save time and money later, when a new ban-the-box law is passed in the employer's jurisdiction," he said.

Criminal history inquiries still provide significant benefits to employers, which even ban-the-box laws acknowledge, Monahan said. "Criminal inquiries can help employers minimize the risk of negligent hiring claims and help provide a safe work environment." However, "waiting to inquire until after evaluating the candidate keeps more candidates in the pipeline, a plus in tight labor markets."

A good time for a background check is after a conditional offer has been made, he said. "This approach aligns with the requirements of most ban-the-box laws and gives employers the chance to perform the EEOC's recommended targeted screen and individualized assessment, which provide more-complete information for informed hiring decisions."

When determining whether or not to hire a candidate who has a criminal conviction, follow a clear, consistent policy to fairly evaluate all candidates. Look at the specific requirements of the role and determine if the conviction is relevant to the job.

"The full set of evaluative tools, such as individualized assessment and targeted screens, should be used to determine whether the candidate's convictions actually relate to the position sought and/or create an unreasonable risk," Monahan said.

Use of Individualized Assessments

When a conviction comes up, not all companies respond the same way. A majority of employers (57 percent) perform an individualized assessment as recommended in the EEOC guidance, while 18 percent do not, and 25 percent of companies do not know whether or not they perform an individualized assessment.

The assessment process evaluates the important factors surrounding a conviction including, but not limited to, the type or severity of a crime, how long ago it occurred, the relationship of the crime to the job held or sought, whether the person is a repeat offender, and other factors. It encourages employers to allow a candidate to give reasons for why that record should not be considered. Employers should consult with their legal counsel concerning compliance with EEOC guidance on the use of criminal history, and the specific factors to consider in the individualized assessment process.

"We believe that giving candidates a chance to explain what happened and the steps they've taken since humanizes the person behind the record and helps build relationships based on mutual trust, fairness and respect," Monahan said.

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