A benefit of using employment applications in hiring is the ability of the employer to directly ask an applicant if he/she has a criminal history that would show up if a thorough background check was conducted, according to Lester S. Rosen of Employment Screening Resources in his August 2009 article in the Lorman Education Service Labor and Employment Law Update Newsletter.
He states that "one problem is that many employers use language that is either too narrow, too broad, or too ambiguous to successfully accomplish this," and each of these errors may lead to legal problems or bad hires. This post addresses the job application that is "too narrow."
According to Attorney Rosen:
"An example of a question that is too narrow is to only ask about felonies. Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious. Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state."
Personally, I have had this issue come up in an EEO investigation, but in the context of an employer learning about a criminal conviction after the employee was hired. It should be noted that "having a prior criminal record" is not a protected class under any EEO laws, thus, it is not something that normally would trigger an EEO investigation. However, this is an issue that can creep into any workplace investigation. For example, it may come up in a "mixed motive" case where an employer based its employment decision on a legitimate business reason, but the employer contemporaneously "discovered" a past conviction of the affected employee.
A number of limitations exist under state and federal law concerning what an employer may legally ask about or "discover" concerning an applicant’s or employee’s criminal record. Under California law, an employer who knowingly violates some of these rules could be unwittingly committing a misdemeanor.
California Labor Code Section 432.7 prohibits employers from asking about an arrest or detention that did not result in a conviction. There is an exception for certain arrest records when the applicant is applying for work at a health care facility and would have access to patients, drugs or medication. Further, California law limits the consideration of any misdemeanor conviction information in cases where probation has been successfully completed or otherwise discharged and the case has been judicially dismissed when making employment decisions.
An employer should consult with its attorneys on how to most broadly draft this question on an employment application without crossing the line.