"Have You Ever Been Convicted Of A Felony? Yes/No"

Tuesday, May 31, 2011 - 01:00

Employers are faced with a delicate balancing act in the hiring process - trying to identify and hire the best candidates for the job, obtaining criminal history or other background information about an applicant and making sure their inquiries regarding a candidate's criminal history, credit history, work experience and personal interests comply with the law. From criminal background checksto Fair Credit Reporting Act authorizationsfrom questions on applications asking about criminal convictionsto determining which convictions are sufficiently job-relatedfrom unexplained gaps in resumes or applicationsto questions about arrestsand nowto new "Ban the Box" laws, the unwary employer may get paralyzed by these intersecting issues.

Gathering Criminal History Information

An employer certainly has an interest in collecting sufficient information on an applicant to ensure that the company is making the best possible hiring decision. To that end, many employers seek to gain further insight into a candidate by performing a criminal background check. While this information often proves useful, the employer must first jump through some administrative hoops. The employer typically must receive the applicant's written authorization under the Federal Fair Credit Reporting Act before it can obtain and consider such criminal history (assuming such history is based on a consumer report as defined by the Act). The company must also provide the applicant an opportunity to review the criminal history report for any errors before the hiring decision is made, and then give another notice if a decision not to hire is based on the criminal history.

Employers can also directly ask applicants to disclose their criminal history even before a criminal background check is performed. Such informal inquiries at the outset of the application process help to weed out applicants whose criminal histories may be disqualifying or otherwise problematic. An applicant's untruthful answers to criminal history questions, when compared to a later background check, also help spotlight applicants who purposefully lie about their past. In fact, most states allow an employer, in its application, to ask applicants about criminal convictions. But inquiries into arrests (especially those that do not result in convictions) are frowned upon. Pennsylvania, like many states, prohibits employers from making employment decisions based on criminal arrests (or even considering arrests in hiring decisions). In Pennsylvania and elsewhere, however, convictions may be considered in the hiring process, but only to the extent they are related to the applicant's suitability for the specific job in question. For example, an applicant with a conviction for driving while intoxicated would be disqualified from a position driving a vehicle, but not from a position as a receptionist. If an applicant is rejected based on criminal history record information, Pennsylvania employers must notify the applicant in writing that the decision was based in whole or in part on such criminal history information.

The Box

To appropriately gather information about applicants, many employers include on their initial job application a box asking the question:

Have you ever been convicted of a felony or misdemeanor? YN

When the box is checked "yes," many employers will then follow up during interviews or with criminal background checks to gather more information into the conviction to determine if the conviction disqualifies the applicant based on the specific requirements of the position at issue. Many employers are now being required to rethink these standard application procedures.

Banning The Box

New state and local laws budding throughout the country prohibit employers in certain jurisdictions from inquiring into criminal convictions early in the employment application process. The underlying public policy of those laws has a common thread - counteracting stereotypes, reducing obstacles to employment and increasing opportunities for persons with criminal records, counterbalancing the prevalence and the ease of access to criminal history records, and enabling applicants to prove themselves and "wow" employers in interviews.

Hawaii became the first state to pass such a prohibition. Four other states (Connecticut, New Mexico, Massachusetts and Minnesota) and 23 cities (including Baltimore, Minneapolis, Jacksonville, Austin and Chicago) have since passed such prohibitions in one form or another. The primary focus of most of these new laws has been governmental employers - not private employers. However, in Massachusetts, a law was recently passed prohibiting private employers from asking job applicants about their criminal history on initial written job applications. Philadelphia has now followed suit. The City of Brotherly Love becomes the most recent jurisdiction to ban employers - both public and private - from asking about criminal history information early in the employment application process. This new law, commonly referred to as "Ban the Box," becomes effective on July 17, 2011.

Philadelphia's New "Ban The Box" Ordinance

Philadelphia's new Ordinance prohibits any covered employer, either in an application or during a first interview, from inquiring about or requiring any applicants to disclose or reveal any information regarding criminal convictions or engaging in any other direct or indirect conduct intended to gather information regarding criminal convictions. Even if an applicant voluntarily discloses a criminal conviction during a first interview, the employer cannot ask during that interview whether the employee has been convicted of other crimes as well.

Only after an applicant completes an application and a first interview may an employer inquire about criminal convictions or run a criminal background check. If the employer does not conduct at least one interview with the applicant, that employer is prohibited from making any inquiries or gathering any information regarding the applicant's criminal convictions. A "first interview" is defined by the Ordinance as the first time that the employer has any direct contact with the applicant, whether in person or by telephone, to discuss the employment being sought or the applicant's qualifications. Violations of the Ordinance may result in a fine of up to $2,000 per occurrence.

Generally, employers with ten or more employees working within city limits are subject to the new Philadelphia Ordinance. Notwithstanding the new law's restrictions, inquiries into an applicant's criminal history are expressly allowed at any time in the application process when "specifically authorized by any other applicable law," or for those occupations where a criminal background check is a legal prerequisite.

Steps Employers Should Take

The new Philadelphia Ordinance takes effect on July 17, 2011. By that date, employers should:

• Revise applications to remove inquiries into criminal history. For those occupations where criminal conviction information is legally required, a separate form should be created to provide to applicants for those positions.

• Conduct a first interview of those applicants deemed to be true candidates for the position.

• Train interviewers never to discuss an applicant's arrests, even if the applicant voluntarily discloses them. During the first interview, interviewers also should not inquire about criminal convictions and, if the applicant voluntarily discloses, steer the interview back to the topic of the applicant's qualifications. General guidance for interviewers is also available here.

• If after the first interview the applicant remains a contender for the position, provide the applicant with a background check authorization in a form that complies with both the Ordinance and with federal and state fair credit reporting acts, where applicable. Avoid automatically obtaining this authorization from every candidate after a first interview, and instead limit the authorization to only the true potential hires.

• If the background check results in discovery of an arrest only, the hiring decision should not be based on that arrest. If the background check results in a reported conviction, the employer should determine whether the conviction disqualifies the applicant from the specific position applied for due to a job-related business necessity. Such a determination should be based on the nature and gravity of the conviction, the time passed since the conviction or incarceration, and the specific nature of the position sought by the applicant.

• Employers who deny employment based on criminal history reports must provide appropriate notices to the applicant in the form required by Pennsylvania's Criminal History Record Information Act and federal and state fair credit reporting acts, where applicable.

• Employers also should steer clear of policies banning from employment all applicants with a record of a conviction. Such an overly strict policy (absent a job-related necessity) may violate anti-discrimination laws since statistics suggest that certain racial minorities are convicted at a rate disproportionately greater than others.

Inquiries into applicant criminal history require a myriad of considerations, and the new legal trend prohibiting many employers from inquiring about criminal history early in the application process further complicates matters. Standard procedures can be developed, however, to balance both the employer's need to ensure that certain applicants with criminal convictions are disqualified from employment and the legal requirements outlined above. The full text of the new Ordinance may be found at http://legislation.phila.gov/ attachments/11330.pdf.

As Chair of Stradley Ronon's Employment & Labor Practice Group, Jonathan F. Bloom focuses his practice on employment and labor law, representing public and private companies, government entities and executives in all aspects of employment law and litigation. A. Nicole Stover , an Associate in the Litigation Practice Group, focuses her practice on employment and complex commercial litigation.

Please email the authors at jbloom@stradley.com or nstover@stradley.com with questions about this article.