Resource Center

Ban the Box Inquiries

Question: Do “Ban the Box” laws prohibit employers from ever asking about an applicant’s criminal history?

Response & Analysis:

No. While “Ban the Box” laws require employers to remove the criminal history question from employment applications, almost every “Ban the Box” policy enacted at either the state or local level allows the employer to inquire into criminal records later in the application process, for example, after the first interview or after a conditional offer of employment has been made.

Rhode Island’s “Ban the Box” law permits an employer to ask about past criminal convictions at the first interview or anytime thereafter. Minnesota and Illinois allow an employer to inquire into criminal histories once the applicant has been selected for an interview, or if there is no interview, once a conditional offer of employment has been made. Similarly, Hawaii allows employers to inquire into conviction records after the prospective employee has received a conditional offer of employment. In Massachusetts, an employer is only prohibited from requesting criminal record information on its initial written application form, but may request such information anytime thereafter.

Thus, employers can continue to ask about criminal histories later in the application process while still complying with almost every “Ban the Box” law across the country. Further, employers are still permitted to eliminate an applicant from consideration, or withdraw a conditional offer of employment, if an applicant is asked about his or her criminal history at the appropriate time in the application process and the applicant misrepresents or fails to reveal information that should have been disclosed.

In McCorkle v. Schenker Logistics, Inc., No. 1:13-CV-03077 (M.D. Pa. Oct. 8, 2014), the U.S. District Court for the Middle District of Pennsylvania held that it was lawful for an employer to withdraw an offer of employment when it discovered that the applicant intentionally misrepresented his criminal history by failing to disclose several criminal convictions. The applicant was extended a conditional offer of employment and then subsequently asked whether he had been convicted of any crimes in the past 10 years. The employer required that the applicant read and sign a statement acknowledging his understanding that giving false information on the application may be grounds for disqualification. Despite this, the applicant reported two convictions but made a deliberate decision not to disclose his remaining eight convictions. When the employer conducted a background check and realized the applicant misrepresented his criminal history, the employer withdrew the offer of employment.

The applicant challenged the employer’s action as a violation of Pennsylvania’s Criminal History Record Information Act, but the court held that there was no illegality because the employer’s decision was based on its good faith belief that the applicant intentionally withheld material information on his employment application in violation of the employer’s policy; the decision was not based on the applicant’s criminal history record information itself.

The court emphasized the wording of the employer’s policy and application form — both of which explicitly stated that the employer would not hire an applicant who misrepresented information. Specifically, the employment policy read: “True misrepresentations of facts, confirmed through the background check, may disqualify an applicant from future consideration of employment.”

Thus, while employers may be required to delay the criminal history inquiry until later in the application process, employers should strongly consider continuing to make the inquiry when it becomes lawful to do so in the jurisdiction where they operate. Additionally, employers should make sure to explicitly state in their policies and on employment applications that applicants who misrepresent any information, or fail to disclose criminal records when lawfully asked to do so, may be eliminated from further consideration.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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