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

Author: Melanie J. Perez-Vellios

No. Federal law expressly prohibits preemployment questions about arrest and conviction records. However, 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. Therefore, it is important for employers to know the applicable state laws regarding such questions.

Courts have recognized, though, that an individual's criminal history is relevant to certain job positions. For instance, where the essential job functions focus on matters such as handling cash, prescription medications, valuable property, working with minors, or involve one-on-one interaction with customers or clients, employers may ask applicants about past criminal convictions. Generally speaking, employers have more leeway in asking about convictions than arrests, but how far they can go varies by state.