employers to follow. Employers should
be aware of the applicable laws in each
state in which their company conducts
business, particularly for locations with
a facility clearance. The following are examples from various US states, including
the District of Columbia, of applicants’
rights and what can and cannot be asked
during the hiring process:
California: An applicant has a
right to view the file that the CRA
has with his or her information, and
order a copy of the file, upon submitting proper identification (such as a
valid driver’s license, Social Security
number, military identification card, or
credit card). The applicant may order a
copy of the file at CRA offices or submit a written request asking that a copy
of his or her file be sent by certified
mail or for a telephonic file summary.
The CRA will provide trained personnel to answer questions about information in the file including any coded
information. The applicant may bring
another person to a CRA office, but he
or she must show proper identification.
The legislation also prohibits employers from inquiring about expunged,
sealed, or dismissed criminal records.
District of Columbia: It is unlawful
for employers to “require the production
of any arrest record or any copy, extract,
or statement thereof, at the monetary
expense of any [applicant].” To the extent
such information is requested, it may
only relate to convictions or arrests that
have occurred within the prior 10 years.
Illinois: Employers cannot inquire
into or use the facts of an arrest or
criminal history record that has been
expunged, sealed, or impounded as
a basis to refuse to hire an applicant.
Also, applications must contain specific
language that informs applicants that
they are not required to disclose sealed
or expunged records.
Massachusetts: If an applicant contacts a company’s HR department, he or
she has the right to know whether the
company ordered an investigative consumer report about them. The applicant
UK “Best Practices”
■ ■ Employers can’t reject an applicant for a job because they’ve
been convicted of an offense after its “spent” period — which
is a term used to refer to a designated rehabilitation period set
forth by the UK Rehabilitation of Offenders Act 1974 (ROA).
■ ❍ Some jobs, however, are listed as exceptions to this rule
and require a declaration of conviction prior to a job
offer (i.e., nursing, childcare, and social work).
■ ■ If the position is not listed as an exception, applicants
are not required to tell potential employers about spent
convictions or cautions prior to receiving a job offer.
CRB VS. DBS
■ ■ After the publication of the UK Protection of Freedoms
Act 2012, the Criminal Records Bureau (CRB) merged
with the Independent Safeguarding Authority to become
the Disclosure and Barring Service (DBS).
■ ■ The DBS is responsible for carrying out criminal records checks for
candidates who are applying for jobs that are exceptions to the ROA.
■ ■ CRB and DBS checks are the same, however, receiving
a CRB check does not mean that it’s out of date.
DEVELOPING A POLICY
■ ■ Understand the parameters of the job in question.
■ ❍ Does it qualify for a DBS check?
■ ❍ Align aggressiveness of job search to meet company culture.
■ ■ Train managers, hiring officials, and decision makers to
understand the restrictions of spent convictions.
■ ❍ Avoid judgments based on convictions in the rehabilitation period.
■ ■ Consider adopting Ban the Box procedures that eliminate the need
to disclose criminal offenses based on preliminary job applications.
QUESTIONS ABOUT CRIMINAL RECORDS
■ ■ When asking questions about criminal records, know that
certain questions are not required to be answered by the
prospective employee prior to receiving an offer.
For more information, visit www.gov.uk/exoffenders-and-employment.
Custodial Sentence Rehabilitation Period (Spent)
0-6 Months 2 Years
6-30 Months 4 Years
30 Months to 4 Years 7 Years
More than 4 Years Never