Does Your Prospective Employee Have a Relevant Criminal History? Be Careful When You Find Out!

Written by Robert G. Brody and Susan M. Westphal on July 18, 2014

When an employer hands a prospective employee an application, there is one question that is usually on that form that is currently getting a ton of debate: prior criminal history.  A movement to eliminate this question from the initial employment application seems to be gaining momentum and its chant is “Ban the Box”.  The movement is designed to have employers first determine if the employee is eligible for the job and then ask about past convictions.  The initial focus was to target public employers.  Now, however, the push is on private employers and many states and cities are listening, even New York City.

The advocacy behind seeking the removal of criminal history from the employment questionnaire is based on the difficulty these individuals are having finding a job.  While there are discrimination laws to prevent improperly denying a job to an applicant simply due to a conviction record, discrimination often persists.  If these applicants could first demonstrate their abilities, they argue, perhaps some of these conviction records would be ignored, and they could be gainfully employed.

In contrast, business owners who may be subject to these regulations, argue they will have to expend time and resources interviewing candidates, only to subsequently find out the employee is not fit for the specific position as a result of a conviction.  The time and money wasted for smaller employers is a huge burden, which could have otherwise been avoided, not to mention the longer delays in filing vacant employment spots.  Moreover, the belief is since this is all part of a public record, why should an employer be prevented from knowing the criminal history up front.

If you are a private employer in New York City, make sure you keep abreast of the Fair Chance Act (“Act”), proposed legislation introduced in late April to the City Council.  If the Act passes, private employers will have to take their application inquiry into past criminal history and save it for a later time.  The legislation proposes that asking about criminal history be deferred until after the employer has “deemed the applicant otherwise qualified and decided to extend a conditional offer of employment.”

If you are unsure whether or not your state has any type of ban on asking about criminal history pre-employment, you should consult legal counsel.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at or 203.965.0560.

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Related Topics: Discrimination and Harassment, Legal Updates

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Susan Westphal has represented employers in employment disputes covering wage and hour claims, discrimination, sexual harassment, retaliation, and employment at will, both in court and before administrative agencies. Learn More »