The new EEOC Guidance recommends that employers not ask about criminal activity and convictions on employment applications. Inquiries should be limited to questions that are job-related.

Some employers ask all applicants about convictions. As noted in the Guidance, employers should review job applications and assess their pre-employment inquiries to ensure applicants are not being asked about their criminal histories in a manner that could lead to litigation and fines.

Companies located in Massachusetts, Connecticut, New Mexico, Hawaii, Minnesota, Wisconsin, New Jersey, and Nebraska and cities including Chicago, Richmond, San Francisco, Minneapolis, St. Paul, Boston and Philadelphia are directly affected by the “Ban The Box” initiative. Twenty-nine other states are considering Ban the Box legislation. So, even if you’re not doing business in a state or city with the law in place you could be in the near future.

Ban the Box laws prevent employers from asking questions about an applicant’s criminal background prior to a first interview. Gerald Maatman, Jr., partner at Seyfarth Shaw LLP, states, “ In essence [Ban the Box] legislation tells employers what they can and cannot put on their employment applications.”

What is considered a first interview is not necessarily clear . Technically, it is considered the initial contact with someone who has submitted an application and occurs when they become an official applicant. Yet, in certain situations a conversation with a receptionist or other employee that operates as a face of the business can be considered the “initial interview.” It is critical to know what an initial interview means in your area. In addition, employers should take the time to review current laws and implement changes necessary to maintain compliance.

The hiring practice arena can be rife with confusing twists and turns and definitions. The new EEOC Enforcement Guidance has added even more twists and turns you must understand. The guidance might also require your company to incorporate new best practices into your hiring process to ensure compliance.
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