I received a lot of questions from employers who have read my post on job application questions related to arrests and criminal records. The main concerns that businesses have are related to managing risks in hiring an employee and the desire to ensure that they do not engage in negligent hiring. Most wanted to know whether they could ask about criminal convictions.

The answer is yes, but . . . Inquiries into criminal convictions must:

• Come after you’ve determined that the applicant meets the qualifications for the job;
• Not be related to marijuana convictions two years or older;
• Be accompanied by a statement that a conviction will not automatically prohibit employment (unless it is for a position that where federal or state law prohibits one with a criminal conviction from holding);
• Be job related and consistent with business necessity.  There are 3 factors to consider when making the determination:

The nature and gravity of the offense or conduct

Careful consideration of the nature and gravity of the offense or conduct is the first step in determining whether a specific crime may be relevant to concerns about risks in a particular position. The nature of the offense or conduct may be assessed with reference to the harm caused by the crime (e.g., theft causes property loss). The legal elements of a crime also may be instructive. For example, a conviction for felony theft may involve deception, threat, or intimidation. With respect to the gravity of the crime, offenses identified as misdemeanors may be less severe than those identified as felonies.

The time that has passed since the offense/or completion of the sentence

Employer policies typically specify the duration of a criminal conduct exclusion. While courts that have considered the issues did not endorse a specific timeframe for criminal conduct exclusions, they recognized that the amount of time that had passed since the criminal conduct occurred was probative of the risk s/he posed in the position in question.

Whether the duration of an exclusion will be sufficiently tailored to satisfy the business necessity standard will depend on the particular facts and circumstances of each case. Relevant and available information to make this assessment includes, for example, studies demonstrating how much the risk of recidivism declines over a specified time.

The nature of the job held or sought

Finally, it is important to identify the particular job(s) subject to the exclusion. While a factual inquiry may begin with identifying the job title, it also encompasses the nature of the job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the circumstances under which the job is performed (e.g., the level of supervision, oversight, and interaction with co-workers or vulnerable individuals), and the environment in which the job’s duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal conduct to the essential functions of the position in question may assist an employer in demonstrating that its policy or practice is job related and consistent with business necessity because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.”

Best Practices

The following are examples of best practices for employers who are considering criminal record information when making employment decisions.

Generally

• Eliminate policies or practices that automatically exclude people from employment based on any criminal record.
• Train managers, hiring officials, and decision-makers about Title VII and its prohibition on employment discrimination.

Develop a Policy

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
    • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
    • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decision-makers on how to implement the policy and procedures consistent with Title VII.

Questions about Criminal Records

• When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.

Confidentiality

• Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.

Review your hiring practices for compliance with federal and California employment laws with a competent California employment attorney.

If you have any questions e-mail or call me at (949) 529-0007.

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