There is a lot of misinformation relate to the way employers can regard the criminal history of an applicant. As a foundational point, remember there is a grave difference between a criminal history and an arrest history. Employers can set principled rules regarding the types of convictions a potential employee can and cannot have but should be very cautious of having a rule regarding an arrest history. This is because, classes of minorities are arrested significantly more often that Caucasians. An employer should not rely on any group to gain discriminatory information about its applicants, even arrest records from police departments. Actual arrest convictions, on the other hand, are considered the most reliable evidence available regarding the occurrence of a criminal activity by a certain person.
Employers should analyze the types of crimes that legitimately relate to the open job. The Employers should articulate Uniform Guidelines on Employee Selection Procedures that detail the types of crimes that are and are not permissible by it’s applicants. Specifically, employers should determine that barring an applicant with a history of a certain type of criminal history is “job related and consistent with business necessity.” Those procedures must also consider the nature of the crime, the amount of time that has passed, and the nature of the job. A job for a floral delivery employee can probably have a legitimate uniform rule that no one ever convicted of vehicular manslaughter or rape may perform this job in their employee. This is because the florist must reasonably ensure that the public is safe from their employees and should not send dangerous perverts on the roads or to the homes of citizens. Conversely, it is probably unreasonable to completely bar applicants with a ten-year-old speeding citation or a littering arrest. It should also be noted that, if an applicant is not honest about an arrest history, there is no requirement to hire a liar.
