Fewer Employers Asking Candidates to Divulge Criminal History

Nick Fishman

Trends in Employment Background Checks

For the sixth consecutive year, EmployeeScreenIQ surveyed U.S.-based employers regarding their use of employee background checks. As with our previous surveys, the 2015 survey was designed to provide a reliable snapshot of:

  • How employers currently utilize background checks.
  • How they respond to adverse findings on background checks.
  • Their paramount screening-related concerns.
  • And their practices concerning Fair Credit Reporting Act (FCRA) responsibilities, Equal Employment Opportunity Commission (EEOC) guidance, and evolving ban the box legislation.

Today, I’d like to share our findings as to employers ask candidates to divulge criminal history prior to the background check. Take a look at the information below:

Do You Ask Candidates to Divulge Criminal History?

As you know we’ve dedicated a lot of attention to “Ban the Box” legislation which has been on the rise in cities, counties, and states across the United States over the last several years. Just in case you haven’t heard much about this movement yet, here’s a brief explanation. When a particular location “bans the box” this means that employers are unable to include the check box on applications which asks whether or not an applicant has been convicted of a crime—at least not until later in the hiring process.

While these laws are well-intentioned, they’ve often become confusing for employers. While they protect job candidates from discrimination, laws are inconsistent, which exposes employers to an increased risk of breaking the law if they are unaware of the facts.

This year’s responses show that fewer respondents are asking candidates to divulge their criminal history on job applications: 53% this year versus 66% last year. Therefore, ban the box legislation and/or EEOC guidance may be having an impact on employer behavior.

However, we must point out that 75% of respondents still ask candidates to divulge their criminal history at some point during the hiring process. While 20% of participants indicate they don’t ever ask candidates about past criminal history, this can be a risky proposition as employers are held to the legal standard, “If they could have known, they should have known,” which can result in potential negligent hiring issues.

Given the EEOC’s recommendation to refrain from asking for self-disclosure on job applications—and a growing number of state and municipal laws that ban the practice outright—it would seem that employers continue to skirt this matter at their own peril, although asking candidates about their criminal history on job applications is still legal in some jurisdictions and required for some regulated industries.

We continue to advise employers that ban the box laws will likely continue to be adopted across the country at both the city and state levels.

To learn more about these findings and many others, check out the full results.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
Nick Fishman
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