405.627.6326 matt@whyhr.guru

Federal law prohibits asking about a lot of things on a job application—sex, race, color, national origin, or religion—in order to prevent discrimination in the workplace. One thing not included in that list is criminal status.

In most states, it’s legal (and often standard practice) to ask employees to disclose on a job application if they’ve ever been convicted of a misdemeanor or felony. And many employers immediately disqualify any candidates who answer yes to that question. But should they?

Our answer is no, criminal status should not immediately disqualify a candidate from consideration for employment. By categorically disqualifying someone for a prior felony or misdemeanor, you’re missing out on the full range of qualified candidates from a diverse candidate pool. It may be legal to include that question on an application, but it doesn’t make it the right choice.

Most job applications ask a candidate to specify the nature of their conviction. With those details, the employer can determine if that individual’s prior felony or misdemeanor will impact their ability to perform the required duties of the job. While a DUI conviction would prevent someone from filling a job that requires driving a company vehicle, it doesn’t prevent them from completing the duties of a customer service position.

In cases where criminal status would impact an individual’s ability to meet the requirements of the job, that should be clearly stated in the job description. For example, a felon is not able to obtain a liquor license, which means they would not be qualified for a job as a bartender. In that case, the job description should clearly state that the individual can’t have a felony on their record due to liquor license requirements.

When employers immediately disqualify anyone with a record from their hiring process, it perpetuates a problem of felons being unable to find stable employment. Without stable employment, they face challenges with housing, supporting their family, and being productive members of society.

We recommend that our clients think twice about the necessity of having the question on their job application. We also recommend that they educate hiring supervisors about where knowing this information is or isn’t relevant so they are not disqualifying by discriminating in this specific area (although deemed okay) in the hiring process.

As you create job descriptions, ask yourself if you would hire a felon for that position. If so, what specific felonies would disqualify a person from that position?

By including specific information in the job description and then following an appropriate background check process, you can select candidates from the full range of available applications rather than disqualifying a candidate solely based on criminal history.

If you want to ensure your hiring process is inclusive of all candidates but aren’t sure what steps to take, contact Why HR today to schedule a consultation.

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