When interviewing employment candidates, are you allowed to ask if they’ve ever been convicted of a felony?
A new law, described below, is a warning about this sensitive area.
Governor Edmund G. Brown Jr. recently signed AB218, which will prevent “public” employers from asking job applicants about their criminal records until further along in the hiring process.
This also means that the question on almost every job application, “Have you ever been convicted of a felony?” must be removed by public employers.
This new law is part of a growing trend that protects those with prior felony convictions and gives them a second chance. The bill’s sponsor, Michelle Rodriguez, was quoted as stating: “A mistake from your past shouldn’t be a life sentence to joblessness.”
What About Private Employers?
There is no federal (or California law) that clearly prohibits a “private” employer from asking about conviction records. Nevertheless, to ask about a criminal record early on in the hiring process and using a conviction as an absolute ban from hiring is discouraged by the Equal Employment Opportunity Commission (EEOC), and such a ban can limit employment opportunities for some protected groups. Civil rights groups supporting the bill noted above also confirmed that criminal record questions have a disproportionate effect on minorities.
All of this suggests that there will be moves afoot to extend this bar to private employers as well, so be prepared!
Guidelines
The EEOC issued guidelines in April 2012 on this subject, and concluded that an employer is liable for discrimination when its neutral policy or practice (in asking about criminal convictions) has the effect of disproportionately screening out a protected group and the
employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.
Again, “private” employers can ask about criminal convictions, but must not exercise a “knee-jerk” reaction to rejecting those with former felony convictions. Some guidelines to consider are:
- The nature of the job;
- The nature and seriousness of the applicant’s offense(s);
- Whether there has been a multitude of prior offenses, or only a single one; and
- The length of time since the most recent offense occurred.
Employers should allow applicants who committed an offense an opportunity to explain the circumstances of the conviction(s), and should make a reasonable effort to determine whether the explanation is reliable. If an employer is uncomfortable with the explanation and the “business necessity” is questionable, it is best to seek legal counsel before making a decision.
And, one final warning … need we mention? …do not post a sign in your lobby that says “Ex-felons need not apply”.
Leave a Reply