I'm under the impression that it is legal in the USA to ask applicants if they have been convicted of a felony. I'm also under the impression that they have to answer honestly. But as a manager, I'm not really interested in knowing if they've been convicted of some unknown felony. It's not really useful information.

Instead, I'm interested if they have a history of specific crimes, like assault or theft. For example, can I ask generically if they have been convicted of a violent crime? Can I ask if they have been convicted of specific crimes, like theft or embezzlement?

I would think that some positions can get away with this because integrity might be a Bona Fide Occupational Qualification (BFOQ). For example, a security guard should probably not have a history of theft. A bouncer should probably not have a history of violence without provocation. If this is accurate, how far can I stretch this? If I am hiring for a secretary and I intend to trust them to manage my checking account, it seems pertinent if they've stolen before and would certainly make me think about their trustworthiness, a BFOQ, in that position.

In my specific personal examples, I would like to avoid theft (all kinds) and assault (all kinds) specifically for three reasons.

  1. The business operates in a separate building on the same property as my house and I feel I have a right to protect my person, family, and property by limiting the people I let be near those things,
  2. I would sometimes have to trust employees with credit card information and cash, and
  3. most employees would be required to travel by air, a stressful situation sometimes, and combining that with a history of violence sounds dangerous.

If addressing these specific things is off-topic or too much for a single answer, then just answering the broad portion at the top is fine.

  • 3
    Downvoter: I know you don't have to, but explaining downvotes helps make posts better. – fredsbend Jul 15 '15 at 23:28
  • 2
    legal advice is explicitly off-topic per help center – gnat Jul 15 '15 at 23:52
  • 1
    @gnat Is it really legal advice, or am I asking about the law? Why does the site have the legal and law tags then? Why does the consensus on meta seem to be that legal questions in regards to HR are on-topic? I don't participate here much, but it seems like this community needs to work this out. – fredsbend Jul 16 '15 at 0:04
  • 4
    This is a 3 year old issue. The meta post linked in the help center says that "legal questions ... HR managers should know the answer to [are okay]". And that sentiment is parroted in another meta post. This community needs to buckle down and act according their own rules or change the rules. I did my homework before asking. This question is within the guidelines. – fredsbend Jul 16 '15 at 0:04
  • 5
    This is not legal advice. This is asking basic question about the law. Similar to asking what the speed limit is. There enough context here to answer the question and this is a basic legal knowledge that our experts should be able to handle. There for I urge reopening of the question. – IDrinkandIKnowThings Jul 16 '15 at 12:13

In every job I've accepted, there has always been a background investigation in which they check police records for any crimes committed by the individual. Both felonies and misdemeanors stay on the records indefinitely. Even if they get expunged, they stay in FBI databases and the actual arrest stays on your record. The only thing that gets rid of them is a pardon.

Usually a job application will ask if they've been convicted of a crime, so there is no need to ask during an interview. If for some reason a person has been convicted of a crime and it doesn't show up on a background investigation, nor admits it on a job application, they will most likely lie during the interview anyway.

After that, it is up to the company whether they still wish to hire the individual based on the results.

  • 1
    So it is legal to discriminate entirely on the basis of being convicted of any crime? – fredsbend Jul 15 '15 at 22:08
  • Is it "legal"...that's cute. No it is not legal, but good luck trying to prove that in court, especially when you have a history. When there's many applicants who don't have crimes, the company will choose them even if they are less qualified (most of the time). – Lawrence Aiello Jul 15 '15 at 22:09
  • So what you're saying is to just run a background check. Don't bother asking. I guess that's kind of an answer. – fredsbend Jul 15 '15 at 23:17
  • 2
    It's good to ask upfront. For starters, it's a good sign of honesty. I have had candidates who admitted they had prior felony and misdemeanor arrests. The nature of the crimes didn't present an issue for the company and we still hired them. OTOH i've had people who said they didn't have a record when asked, BC said otherwise and we refused to hire them because they lied to us. We've also pulled offers because people lied about degrees and military service. In one case I pulled an offer letter because the candidate claimed to be a former medic in the Marines (which is impossible!) – ChrisL Jul 15 '15 at 23:50

If you have a reason for having a basic requirement, like not having been convicted of a specific crime, then yes you can ask it. For instance, insurance might insist that you not employ anyone as a driver that has had a DUI in the last X years. If someone is working with money it is reasonable to ensure that they have not been convicted of theft, fraud, or any other finance crime (like bouncing checks). If they will be working with anyone's personally identifiable information it is wise to ensure that candidates can be trusted.

It is legal to choose not to hire someone because they do not meet the requirements of the position. It is also legal to terminate someone with in the legally allowed probationary period of your state (usually 30-90 days) if they were hired knowing that they would have to pass a background check and that check reveals that they lied about their record. However, unless they are on some probationary status that requires the disclosure of their record, they are not required to inform or be honest with you in their application. It is up to the employer to verify the veracity of information provided to them.

If you choose to hire someone on the condition that their background check comes back clean, but are unable to get the background check completed before that probationary period is up, you may be unable to terminate someone depending on your state's employment laws. So it is generally preferable to complete these screens before beginning employment. This is one reason that many companies have taken to bringing people in through temp/contract companies for a trial period and let the agency do the leg work on backgrounds and employment verification. It shifts some of the new hire risk onto someone else's shoulders.

  • 2
    I believe you are correct about it being legal to ask such questions, but an authoritative source (or precedents) would strengthen your answer. – Monica Cellio Jul 20 '15 at 18:33
  • In the US unless an action is forbidden by law then it is allowed. So in this case actually the burden of proof would be on the person saying this is incorrect to show proof other wise. Background checks are common in the working world. While that in and of it self is not proof, in absence of proof in the contrary it can stand. – IDrinkandIKnowThings Jul 22 '15 at 0:46

Usually, applicants are asked if they have been convicted of a felony and if answer expected is either "yes" or "no". If they are asked in the application whether they have been convicted of a felony, white space is provided so that they can explain themselves(*). While they may not be explicitly required to list their felonies, they would have a hard time explaining them away without citing them. If they don't list the specific felonies, a background check will turn these felonies up with all the juicy details should you want them. All you need to do once you have your hands on that info is to read the info.

If your background check turn up a felony, give the candidate a chance to explain themselves - It may turn out that the felony you turned up was later expunged and the source of your felony data never updated the status of that felony conviction.

(*) I consider an applicant not explaining their felony after stating that they have been convicted of a felony as a pretty big mistake on the part of the applicant.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.