What you can ask about a criminal record during a job interview—and what you can’t

Understandably, for many employers, a candidate’s criminal history or criminal record is a matter of both interest and potential concern in the hiring process.  While sometimes valuable in making a hiring decision, considering a candidate’s criminal record is is fraught with legal risk.  

Luckily, the Equal Employment Opportunity Commission (EEOC) has provided guidance that can help small businesses steer clear of any appearance of discrimination.   

Below is a list of the top pitfalls to avoid when asking about criminal history in the hiring process, and suggestions to get the information you need while remaining compliant with the law.

Avoid 3 common pitfalls of considering criminal records when hiring

If it’s important to the position, you can ask if an applicant has ever been convicted of a crime during the interview.

But don’t ask about a criminal record on the application.

Asking for criminal history can give the impression that the applicant may lose the job before the company has a full picture of them. Some states have even banned requesting criminal history on the application outright. Even when it isn’t illegal, the EEOC advises evaluating criminal history as only one factor of an applicant’s fit.

Employment background check laws stipulate that you can run a background check only after making an offer and according to a written company policy.. But don’t run a background check prior to making an offer.It can be discriminatory to run a background check prior to the offer stage.  It can also be difficult for a company to prove otherwise in a discrimination lawsuit.

Create a written company policy that outlines why you would run a background check and when. This approach will help you avoid the appearance of discrimination while staying true to your hiring standards.

You can evaluate the criminal record of each candidate within the larger context of ability to perform the job.

But don’t set a predetermined hard and fast policy that eliminates candidates with adverse criminal history.

Although a solid policy may appear to make the process fair, the EEOC has advised against this. It may eliminate candidates for reasons that have no relation to their ability to perform the job. The EEOC advises that employers should instead consider the circumstances and context of the crime. They should also consider whether or not the criminal history will effect an applicant’s ability to add value to the team. 

You can download a printable PDF version of this guide to share with your team.

And once you’ve found that perfect employee, be sure to use Homebase for employee scheduling, timesheets, and hiring tools.


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