Should Employers Ask Job Applicants About Their Arrest History

Should Employers Ask Job Applicants About Their Arrest History? 

The New York Times’ Ethicist columnist (“The Right to Remain Silent,” Sept. 8, 2013) recently was asked by a Vermont resident named Jim if it would be ethical to answer “no” to a prospective employer’s query about having an arrest record if he’d been arrested but never formally charged with a crime?

While acknowledging the questioner’s dilemma, the Ethicist instructed Jim that he was in no position to question the merits of the inquiry.  If he wants the job, he has to “accept its prerequisites.” A lie is a lie.

The dilemma faced by Jim, as well as nearly one-third of the U.S. population (who will be arrested by the age of 23) is not merely a hypothetical one.

Employer as Judge and Jury

While job applicants may not be able to question the merits of such a query, I am.  Since when have employers been anointed judge and jury? How can they evaluate someone’s guilt or innocence on the basis of an arrest record? Given that most employers can’t read a rap sheet, it defies logic that they would pass judgment on someone’s qualifications relying on criminal charges that were never proven.

Some States Prohibit Questions about Arrest History

Fortunately, some states (and hopefully more to come) now bar employers from asking job applicants whether they have an arrest record. 

To date, at least 15 states either prohibit or strongly discourage employers from asking about someone’s arrest history on the grounds that the question may be discriminatory.  In the state of Vermont, where questioner Jim resides, there are no such restrictions.

This legislative trend is encouraging.That said the benefits of this legislation is limited due to the fact consumer reporting agencies (CRA) – who conduct most employment background checks -- are largely immune from state regulation.

CRAs are regulated by the federal Fair Credit Reporting Act (FCRA). Under this law, CRAs can provide information about someone’s arrest history if it is not more than seven years old.

Until changes are made to the FCRA, state laws prohibiting employers from asking about arrest records will provide little protection. Employers will continue to receive arrest record information from CRAs – no matter what their state law permits.