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  • Can You Do That? Tips for Asking Applicants about Criminal History

    09/14/15 10:00 AM | By :Exact Staff | Categories : Employers, News | Leave a Comment
    Tags: , , , , ,

    “Have you ever been convicted of a felony?”

    If you have any hiring responsibilities, the mere mention of a question like this can raise the hair on the back of your neck. New laws and an extremely vigilant Equal Employment Opportunity Commission have made the process of protecting your organization – while still ensuring great hires – complex, risky and altogether nerve-wracking.

    How – and when – and where – can you legally ask applicants about criminal history?

    It would be great if there were a simple, cut-and-dry answer. Unfortunately, however, laws vary based upon where your business is located. Here are a few facts you should know:

    • Currently, the U.S. has no “ban-the-box” law that entirely prohibits criminal history inquiries.
    • A growing number of states (including Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon and Rhode Island), local governments, cities and counties DO have “ban-the-box” laws that impact private employers.

    And here’s what you should do to protect your company:

    • Determine whether or not you operate in a “ban-the-box” jurisdiction (new laws are passed all the time!).
    • If you do operate in one of these jurisdictions:
      • Know the detail of the law – including whether you’re prevented from asking about criminal history entirely.
      • Scrutinize your organization’s job applications to be sure any questions about criminal history comply with applicable laws.
      • Adjust your hiring process, so that it delays inquiries about criminal history until a point at which it’s allowed by law.
      • If yours is a national employer, you’ll have to choose between tailoring your hiring practices to comply with each applicable jurisdiction, and creating a uniform policy that complies with ALL applicable “ban-the-box” laws.
    • Create and enforce a policy for conducting background checks. A good policy is in writing, uses objective criteria and is applied to every candidate in the same way.
    • Train everyone involved in your hiring process on the rules of your background check policy. This ensures that the policy can be applied uniformly, which adds another layer of protection against the risk of a discrimination lawsuit.
    • Avoid adopting a “blanket” background check policy that unilaterally eliminates all applicants with any criminal record.
    • Never ask an applicant about information that is not relevant to the job for which they applied, even if it appears on the criminal background check report.
    • Keep criminal background check information confidential.
    • Always consult a qualified attorney who specializes in employment law if you have specific questions regarding applicable laws in your jurisdiction. While the information in this post is intended to be helpful, it is not a substitute for professional legal advice.

    Stay compliant – and hire smart – with Exact Staff.

    Exact Staff stays up-to-date on the rapidly changing world of hiring law to:

    • Screen candidates properly
    • Perform legal background and reference checks
    • Offer you the best possible pool of candidates

    If you lack the in-house resources to conduct compliant criminal background checks – or just need a little help with the process – we’re here to help you stay safe and hire smart.


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