May an employer ask on an application form if a candidate has any arrests or criminal convictions?

Author: Melanie J. Perez-Vellios

It depends. While federal law does not ban preemployment questions about arrest and conviction records, EEO laws do prohibit employers from discriminating when they use criminal history information. The Equal Employment Opportunity Commission (EEOC) takes the position that asking such questions can have the unintended effect of disproportionately excluding minority candidates from consideration. In addition, some states prohibit inquiries about an applicant's arrest record under their civil rights laws.

An employer has a little more leeway with convictions than arrests. However, it must be aware that an increasing number of states and cities have ban the box laws prohibiting criminal history questions on job application forms, subject to limited exceptions such as for jobs working with minors. Ban the Box refers to the "box" on job application forms where prospective employees are asked whether they have ever been convicted of a crime.

If an employer is subject to a ban the box law, it may be permitted to request certain criminal history information later in the hiring process.