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Should a Criminal Record Rule Out a Job Applicant?

The goal is an appropriate balance between fairness to job applicants and the employer’s right—indeed, legal obligation—to create a workplace that is safe for employees, customers and business interests.

Q. Many states and cities are prohibiting employers from asking job seekers, on the initial application form, whether they’ve ever been convicted of a crime. What do you think about this?

A. I agree with supporters of the “ban the box” movement who argue that an applicant who checks this box on a written or online job application is often automatically rejected, without an employer considering factors such as the nature of the crime, its relevance to the job being sought, how much time has elapsed since the crime and what the applicant has done since. That strikes me as unfair to applicants who have learned from their mistakes and want a chance to earn an honest living.

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Ban-the-box laws do not prohibit an employer from ever asking applicants whether they have a criminal record, as long as it’s done (according to varying state laws) during a personal interview, after the interview or when a conditional job offer is being made. That strikes an appropriate balance between fairness to the applicant and the employer’s right—indeed, legal obligation—to create a workplace that is safe for employees, customers and business interests.

If an ex-offender has the qualifications to do a given job—and looks better on paper than the other applicants—he or she should get a shot at a personal interview. That’s when the interviewer may (and should) ask all applicants whether they have a criminal record and give those who do the opportunity to explain why it shouldn’t disqualify them. Even if that explanation is persuasive, an employer should always do a professional background check before making a firm offer, lest the employer be held liable for negligent hiring if the ex-offender later harms someone in the workplace.

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Ban-the-box laws appropriately allow employers to summarily reject applicants (even with a box to check) whose past crimes would make them risky in a particular job—say, an embezzler working in a bank or a sex offender working with children.

Have a money-and-ethics question you’d like answered in this column? Write to editor in chief Knight Kiplinger at ethics@kiplinger.com.

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