Questions about felony in interview
Good morning:
I'm preparing some training material for our managers involving interview question do's and don'ts. In researching this, a senario was posed in another forum about questions you can ask during an interview, if the applicant has indicated on the application that he has had a felony conviction. The answer came back that felonies of any kind do not have a protected status, and therefore you can ask anything you want during the interview.
As this struck me as such a blanket statement, I went looking for something to document this; I've checked on the US DOL site, EEOC, Washington L&I, among others, and I can't find anything specific to this.
Is this a federal thing, or state-specific? I am in Washington state, and registered sex offender information is a matter of public record, so a conviction of that nature (even if not a felony conviction) is "fair game" so to speak. What about other felony convictions?
I'd sure feel better if I could find something in black and white.
Thanks for any and all responses;
Treading Lightly in Washington
Comments
Inquiries about convictions may be made if the convictions reasonably relate to job qualifications and if the conviction or release from prison occurred within the last 10 years. This restriction does not apply to law enforcement agencies and state agencies; school districts; and businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults.
Employers should use caution, especially when considering arrest records. The federal Equal Employment Opportunity Commission (EEOC) takes the position that it is a violation of Title VII of the federal Civil Rights Act to base an employment decision solely on an applicant's arrest record. According to the EEOC, employers may rely on a record of a criminal conviction only if it is related to the job.
Here is your state law (BLR State Comparison)
WA WA Rev. Code Ann. §§43.43.815, 830, 832 WA State Human Rights Employment Practices.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Pre-employment Inquiry: Arrest Record
Statutory Provisions:
None.
Agency Guidelines:
Prohibition against inquiry into arrests.
Pre-employment Inquiry: Conviction Records
Statutory Provisions:
None
Agency Guidelines:
Permitted inquiries include whether charges are still pending, have been dismissed, or have led to conviction. The inquiry must be about arrests for crimes that involve behavior that would adversely affect job performance and that occurred within the last 10 years. This inquiry restriction does not apply to law enforcement agencies and state agencies; school districts; and businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults.
Employment Discrimination:
Prohibition against discrimination on the basis of arrest not resulting in conviction.
Most employers have moved forward in the last 25 years by assuming that pro-social behavior IS job related behavior. That's why many companies have codes of conduct and various other policy instruments for firing jerks.
The question for your counselor is this: "Has the relevant administration in the State of Washington moved forward in a similar fashion?"
If yes: most every felony and many non-felonies would be OK. (Texas uses a moral turpitude standard although for Federal reasons, arrest questions are still to be avoided).
If no: find out how far you can go before you find yourself preferring to mediate an EEOC charge than move forward with an investigation, potentially tapping into a lot of records and record keeping practices.
I have always taken the stance that questions about arrests should not be asked. If your application has a question about felony convictions then you can ask about it. You have to understand that in some states, someone can get convicted of a felony for things like traffic citations or accidents, stealing, intent/threat to burn, murder, etc. My point is that there is a wide range of things that someone can get convicted of a felony for in different states. If someone is convicted of a felony 15 years ago for a traffic violation, and the job they are applying for does not require them to drive anywhere, then it may not be a knockout.