When Can Job Applications Ask About Criminal Records?

employment application
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Job seekers with a criminal history often wonder whether they have to disclose that information when they are job hunting. On many job applications, there is an option to check a box indicating whether or not you have a criminal record or conviction. If you check yes, you are asked to explain your circumstances.

However, there is a good chance that a prospective employer will deny you employment even before reading the rest of your application.

While you may encounter some challenges while job searching if you have a criminal record, you should know your rights, and what questions you can appropriately be asked during the application process.

It’s important to remember that while an employer can choose not to hire you based on your record, you can also be fired for not disclosing it or misleading the employer during the application process. You are much better off being truthful, if you are given a chance to explain your situation. If you have impressed the employer with your qualifications and experience, your criminal record may not be a hindrance to getting the job.

Ban the Box Legislation

Because of the potential discrimination issues, there are laws in some locations, known as “Ban the Box” legislation that limit what can be asked on a job application.

This doesn’t mean that employers can’t check your criminal history when conducting a background check, but in jurisdictions which have them it does preclude the information from being requested when you apply.

State and Local Laws Which Regulate Job Application Questions

  • Seventeen states and over 100 cities already have some type of legislation limiting what can be asked on a job application for positions in the public sector.

  • Six states including Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, as well as 25 cities and counties, have prohibited the inclusion of the conviction question on applications for jobs with contractors or private employers.

    Employers in these jurisdictions can still conduct background checks after they have issued a tentative offer.  They can eliminate candidates from consideration on the basis of their findings.  The laws are intended to protect job seekers with a criminal record from being eliminated from consideration prior to receiving a fair chance to meet with and impress employers.

    Application Questions in States Without Legislation

    Currently, in states without legislation that prohibits asking, most applicants must indicate if they have been convicted of a crime in the past ten years, or any disorderly offenses in the past five years.

    Federal Directives

    On the federal level, legislation intended to ban that question on all job applications was introduced in Congress in 2012 and was tabled with no vote taken. However, the U.S Equal Employment Opportunity Commission (EEOC) has designated exclusion of a criminal record box as a best practice for equitable hiring.  

    In addition, the Obama Administration's Brother's Keepers Task Force declared their support for hiring practices “which give applicants a fair chance and allow employers the opportunity to judge individual job candidates on their merits.”