A person who is arrested and then not proven to be guilty has a right not to be adversely affected by the label of an arrest record. Some examples of how wide the disparity in state laws is on the subject of applicant inquiries include: In Massachusetts, you cannot ask any questions of the applicant about arrests in which no conviction occurred, but you may obtain the same information from another source. In Arizona, you can ask about arrests that are directly related to the job being filled. In California, you cannot ask about arrests that do not result in a conviction and you may not use marijuana-related convictions that are more than two years old. As you can see, it is critical to find out the laws for the state in which you do business. The best ways to learn about an applicant’s criminal history, if any, is to contact the state agency responsible for criminal-record information or use a professional company that is in the business of doing background checks. If the information is available in a state, you will need to get the applicant’s signature on a properly worded consent form in order to authorize the records check. That language can usually be obtained from the investigating firm or from your lawyer. As to the applications you have filled out in the past, the same rules apply to inquiries on an application as they do to inquiries during an interview. It may be that when you filled out employment applications, the laws were less restrictive on employers’ rights to ask about arrests. Or, as I stated earlier, some states still have a more permissive view on the subject of arrest inquiries. Whether you have to answer these questions depends upon the current laws in your state. Have a question? The HR Coach is ready to answer your questions about people issues at work and the HR challenges facing small businesses today. This Q & A format will be based on your questions and those frequently asked by her clients. We reserve the right to edit questions for clarity and length. No names will be published. Send your questions to: TheHRCoach@aol.com Linda Lerner is an executive coach and a human resources consultant. She consults on best practices to a broad range of small businesses and coaches managers to make the most of their challenges and opportunities at work. Prior to founding Lerner Consulting Services, she was Chief HR Officer at USTrust. She can be reached at Linda@Lernerconsulting.com. Read more ‘The HR Coach’ columns:
What Can, And Can't, Be Asked During The Job Interview
Question: I read your article on “Don’t Get Personal.” One of the items you mentioned was arrests. Can you please explain why I should avoid asking about arrests during the interview process? Shouldn’t I need to know if someone has been arrested for drug abuse or stealing, for example, before I employ them in a position that puts them close to my customer’s property or up on a ladder?
Also, before I started my own business, I worked at various companies. Almost every application I have completed in my lifetime has asked about arrests. Are you required to answer this question on an application?
Anyone can be arrested, but that doesn’t mean that they committed the crime.
Fortunately, in the United States we are considered innocent until proven guilty. Arrests can occur when one is suspected of a wide range of possible crimes, from a simple misdemeanor to a major felony. The nature of the arrest and the timing matters. For example, was your prospective bookkeeper arrested for protesting the Viet Nam war 25 years ago or for allegedly embezzling from his last employer three years ago?
Although an arrest is often considered public information, because local police departments release daily arrest logs to the local newspaper, those records are in a very different category than records of convictions. Conviction is the key word here.
Generally speaking, laws allow a potential employer to inquire about convictions but not about arrests. An arrest by itself is no proof of guilt. It is very important to know that states vary greatly in their laws that govern this area of employer rights when requesting information as to an applicant’s possible criminal history.
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A person who is arrested and then not proven to be guilty has a right not to be adversely affected by the label of an arrest record. Some examples of how wide the disparity in state laws is on the subject of applicant inquiries include: In Massachusetts, you cannot ask any questions of the applicant about arrests in which no conviction occurred, but you may obtain the same information from another source. In Arizona, you can ask about arrests that are directly related to the job being filled. In California, you cannot ask about arrests that do not result in a conviction and you may not use marijuana-related convictions that are more than two years old. As you can see, it is critical to find out the laws for the state in which you do business. The best ways to learn about an applicant’s criminal history, if any, is to contact the state agency responsible for criminal-record information or use a professional company that is in the business of doing background checks. If the information is available in a state, you will need to get the applicant’s signature on a properly worded consent form in order to authorize the records check. That language can usually be obtained from the investigating firm or from your lawyer. As to the applications you have filled out in the past, the same rules apply to inquiries on an application as they do to inquiries during an interview. It may be that when you filled out employment applications, the laws were less restrictive on employers’ rights to ask about arrests. Or, as I stated earlier, some states still have a more permissive view on the subject of arrest inquiries. Whether you have to answer these questions depends upon the current laws in your state. Have a question? The HR Coach is ready to answer your questions about people issues at work and the HR challenges facing small businesses today. This Q & A format will be based on your questions and those frequently asked by her clients. We reserve the right to edit questions for clarity and length. No names will be published. Send your questions to: TheHRCoach@aol.com Linda Lerner is an executive coach and a human resources consultant. She consults on best practices to a broad range of small businesses and coaches managers to make the most of their challenges and opportunities at work. Prior to founding Lerner Consulting Services, she was Chief HR Officer at USTrust. She can be reached at Linda@Lernerconsulting.com. Read more ‘The HR Coach’ columns: Don’t Get Personal
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A person who is arrested and then not proven to be guilty has a right not to be adversely affected by the label of an arrest record. Some examples of how wide the disparity in state laws is on the subject of applicant inquiries include: In Massachusetts, you cannot ask any questions of the applicant about arrests in which no conviction occurred, but you may obtain the same information from another source. In Arizona, you can ask about arrests that are directly related to the job being filled. In California, you cannot ask about arrests that do not result in a conviction and you may not use marijuana-related convictions that are more than two years old. As you can see, it is critical to find out the laws for the state in which you do business. The best ways to learn about an applicant’s criminal history, if any, is to contact the state agency responsible for criminal-record information or use a professional company that is in the business of doing background checks. If the information is available in a state, you will need to get the applicant’s signature on a properly worded consent form in order to authorize the records check. That language can usually be obtained from the investigating firm or from your lawyer. As to the applications you have filled out in the past, the same rules apply to inquiries on an application as they do to inquiries during an interview. It may be that when you filled out employment applications, the laws were less restrictive on employers’ rights to ask about arrests. Or, as I stated earlier, some states still have a more permissive view on the subject of arrest inquiries. Whether you have to answer these questions depends upon the current laws in your state. Have a question? The HR Coach is ready to answer your questions about people issues at work and the HR challenges facing small businesses today. This Q & A format will be based on your questions and those frequently asked by her clients. We reserve the right to edit questions for clarity and length. No names will be published. Send your questions to: TheHRCoach@aol.com Linda Lerner is an executive coach and a human resources consultant. She consults on best practices to a broad range of small businesses and coaches managers to make the most of their challenges and opportunities at work. Prior to founding Lerner Consulting Services, she was Chief HR Officer at USTrust. She can be reached at Linda@Lernerconsulting.com. Read more ‘The HR Coach’ columns:
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