Can application forms ask me about criminal arrests or convictions?

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Question:

I ran with a bad crowd when I was a kid, and I have a couple of misdemeanor convictions for alcohol and drug offenses. I've long since cleaned up my act, but I'm concerned that my youthful indiscretions could torpedo my job search. I'm looking for a retail position, and many of the companies I'm interested in use a standard employment application form that includes a box you have to check if you have an arrest or conviction record. Can they refuse to consider me if I check the box? 

Answer:

Whether an employer can disqualify you based on your criminal record depends on several things. First of all, a number of states limit an employer's right to ask applicants about certain offenses. Even if an employer has the right to ask about your criminal record, it may not be allowed to consider that history in making hiring decisions, unless the offense is related to the job for which you are applying. To find out your state's rules on employer use of criminal records, select it from the list in State Laws on Use of Arrests and Convictions in Employment

If your state's law doesn't limit an employer's right to gather or use this information, federal discrimination laws might. The Equal Employment Opportunity Commission (EEOC) has said that excluding all applicants with a criminal record could discriminate against certain racial and ethnic groups. The EEOC's guidance to employers who want to ask applicants about their criminal history is to look at each applicant's circumstances, rather than simply disqualifying anyone with a criminal record. To make sure they aren't acting in a discriminatory way, employers should consider the nature and seriousness of the offense, how much time has passed since the offense, and the nature of the job. For example, an employer might reasonably exclude an applicant with a history of identity theft offenses from a job that involves handling confidential customer information. 

Unfortunately, not all employers have gotten the memo on how much weight they can place on criminal history in hiring. As you have found, many employers use a standard applicant form that asks about criminal records, without giving applicants a chance to explain and without indicating how the company plans to use that information. This has led to the "ban the box" campaign, an effort to get rid of that question on application forms. For the most part, however, states haven't been in a huge rush to jump on this particular bandwagon. 

Your best strategy might be to try to seal or expunge your criminal record. Because you were a juvenile when these offenses took place, and they are relatively minor, you may qualify to have your record sealed. The purpose of sealing or expunging records is to wipe your slate mostly clean. If you apply for a job in law enforcement or you commit a similar offense as an adult, the state can likely still consider your record, even though it is sealed. Otherwise, however, you are generally allowed to act as if these offenses never happened. If you are asked whether you have a criminal record or have been convicted of a crime, you may answer "no." And, you don't have to check the box on application forms that ask these same questions. This might be the surest path to your next job.

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