Podcast: Employers Walk Tightrope With Criminal History Questions

Hosted by: David Weisenfeld

Most employers conduct background checks of job applicants at some point in the hiring process to help stave off possible negligent hiring claims. But asking criminal history questions of prospective employees can bring its own set of risks. This is especially true in light of the EEOC's 2012 Enforcement Guidance suggesting that an employer's use of conviction records for employment purposes is not unlimited. The Commission also said that arrest records alone should not disqualify an applicant from employment.

This podcast examines the chief concerns for employers in this area with Rosemary Gousman, the Regional Managing Partner at Fisher Phillips in New Jersey. Speaking of employers, Gousman says, "They just can't have a knee-jerk reaction: 'If you've been convicted of a felony or a crime, we can't hire you.' That's no longer permitted."

Podcast: Employers Walk Tightrope With Criminal History Questions

August 12, 2014

The Fisher Phillips attorney also addresses the nationwide trend of "ban the box" laws, which restrict employers from including criminal history inquiries on job applications. Nearly 70 municipalities have passed "ban the box" laws while six states have passed measures that limit most private employers from such inquiries at the application stage.

However, Gousman points out that, with one exception that applies to vendors, none of these laws prevent employers from asking criminal history questions before an individual starts working for them.