CAN EMPLOYER ASK ABOUT CRIMINAL CONVICTION?
QUESTION: I heard that Gov. Snyder signed a “ban the box” law last year, forbidding employers from asking job applicants about their criminal history. Does this mean I won’t be able to know if the candidate I hired is a felon?
ANSWER: The executive directive, issued by former Gov. Rick Snyder last September, applies only to initial job application forms for state jobs. The new directive applies only to the first screening phase of the application process. A criminal history check can still occur later on.
The purpose of the directive is to ensure that job applicants with a conviction in their pasts are not automatically excluded from job consideration. The directive could impact a lot of would-be workers. While there is no federal data on the number of Americans with criminal convictions, almost a third of all adults have a criminal history of some kind.
If you’re a private employer, you can continue to ask job applicants to check the box: The new rule does not apply to private employers. But you might want to ban the box, or modify your form, anyway. Using form that essentially disqualifies anyone with a conviction may hurt employers almost as much as it harms potential applicants. You can’t know how many well-qualified applicants might be excluded from consideration because, for example, they had a troubled youth or a long-ago conviction for possession of marijuana. Use of the criminal history box may also expose employers to possible claims of race or national origin discrimination on a disparate impact theory.
The Equal Employment Opportunity Commission (EEOC), relying on FBI and census data, says that black and Latino Americans are arrested and incarcerated in numbers that are “disproportionate to their representation in the general population” and are also more likely to be convicted for drug offenses, even though their rate of drug use is similar to that of white Americans.
This means that blacks and Latinos are more likely to be denied consideration for a job than their white counterparts when a prior-conviction check-box is used on the initial application form. Because the application process has a disparate impact on a protected group, use of the criminal conviction check box may be a violation of Title VII of the Civil Rights Act.
An increasing number of states, recognizing the issues a criminal conviction check box may present, are now banning their use, even by private employers.
Employers who want to avoid the risk of litigation, but exclude serious criminals from consideration, can modify what they ask on the application. Instead of asking job candidates if they have any criminal conviction, an employer can ask if the applicants have been convicted of specific felonies or misdemeanors (murder, criminal sexual conduct, larceny, embezzlement) and may want to limit the question even further to convictions that have occurred within the last 10-20 years.
Changing your application form does not mean you will have to hire a convicted murderer – serious felons can still be screened out, either in the initial application, or through a background check later in the process.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084