Forums
Can candidates omit crime that's more than 7 years old?
Recruiting & Staffing
Can candidates omit crime that's more than 7 years old?
Exchange ideas about sourcing, screening, interviewing, finding passive candidates, measuring your results, and more.
Hi,
I am drafting the employment application for my company. Can the candidates omit a criminal offense (misdemeanor or felony) that is more than 7 years old? I have seen companies doing both ways.
0
Cat:Topic ForumsForum:ForumId56
Cat:Topic ForumsForum:ForumId56Discussion:DiscussionId31815
Forums » Topic Forums » Recruiting & Staffing » Can candidates omit crime that's more than 7 years old?
Forums
»
Topic Forums
»
Recruiting & Staffing
»
Can candidates omit crime that's more than 7 years old?
|
Can candidates omit crime that's more than 7 years old?
posted at 7/14/2006 12:18 PM EDT
|
Posts: 22
First: 10/28/2005 Last: 10/12/2007 |
Hi,
I am drafting the employment application for my company. Can the candidates omit a criminal offense (misdemeanor or felony) that is more than 7 years old? I have seen companies doing both ways. Some say they can omit, some say they can't. Is there a uniform rule? If it helps, my company is based in CA but has offices in WA and IL. Thanks a lot, Rui |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 3:11 AM EDT
|
|
Posts: 6
First: 9/5/2002 Last: 9/14/2006 |
First I believe you can only ask if they were convicted of a crime, not arrested. I worked in CA for 5 years (just moved away) and I am not aware of any rule in CA that imposes a time frame. However, this really sounds like a question for an employment attorney, especially since you do business in multiple states. You could try looking on Legal Forum. |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 5:06 AM EDT
|
|
Posts: 120
First: 8/23/2006 Last: 9/29/2006 |
Technically speaking you can ask anything; it is what you do with the information that gets you into trouble or provides evidence that won't show the employer in a favorable light. Admittedly asking inappropriate questions is a bad idea, however, it is not necessarily illegal or otherwise against the law.
there is no "rule" about how far back you must look for criminal convictions unless required for a specific occupation or line of work by contract or regulatory means. An example is screening Long term care workers for convictions of elder abuse or crimes of violence; armed security guards for felony convictions and so forth. State law will govern that. In the general population employers arbitrarily choose these consistent with state or local law gioverning the use of prior convictions in the employment selection process. So a simple answer to your question is "it depends." |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 6:27 AM EDT
|
|
Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
The statement that "Technically speaking you can ask anything; it is what you do with the information that gets you into trouble or provides evidence that won't show the employer in a favorable light" is a very misguided statement. Certain jurisdictions consider various inquiries illegal per se, while depending on the nature of the job an inquiry might also be unlawful irrespective of its use (e.g, invasive inquiries are commonly only justified for safety-sensitive jobs). I trust these comments are helpful in correcting this piece of misinformation. Dave Arnold, Ph.D., J.D. |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 7:46 AM EDT
|
|
Posts: 120
First: 8/23/2006 Last: 9/29/2006 |
Misinformation Dave? "Certain jurisdictions consider various inquiries illegal per se, while depending on the nature of the job an inquiry might also be unlawful irrespective of its use (e.g, invasive inquiries are commonly only justified for safety-sensitive jobs). "
I challenge you to give credible legal cite that proves your cause. Not your 'learned opinion" rather a cite that declares a question illegal as a result of its content and not an action that was somehow tied to the question. I appreciate your desire to help others. However the absolute risk aversion you promote removes the ability for any employer to engage in most any conversation without absolute fear. Further, it places both an unrealistic and even more importantly unsustainable requirement on anyone engaged in interviewing. Perhaps that does well for your business but it does not provide anyone with a valued tool anymore than it gives anyone engaged in business a word option beyond silence. In short, it is nothing more than an exercise in academic language void of any practical or real world application. In other words a ridiculous way to further justify the even more ridiculous practice of stating something is illegal before adjudicated as such. Consequently my simple query, "hello how are you doing today?" becomes illegal by your definition. It could be interpreted as an invasive question regarding a hidden medical condition. lets get real okay and stop making legal issues out of things that are not. Good future HR professionals are ruined by that kind of ridiculousness. Codswallop is an old term that comes to mind. |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 8:01 AM EDT
|
|
Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
Prudence would mandate that participants do a bit of legal research before expressing broad-based legal opinions with little or no foundation. As a starting point, I would suggest that you do a bit of research in the area of privacy law. Also, I recommend checking with various state-based human rights agencies regarding their specific prohibitions regarding pre-employment inquiries. I trust this approach will provide you with some enlightenment. Parenthetically, as an employment lawyer I try to ensure that my clients operate with a much flexibility as possible---however, I never give advice using the ready, SHOOT, aim approach that you seem to have adopted. I trust this information is insightful. Dave Arnold, Ph.D., J.D. |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 8:24 AM EDT
|
|
Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
I'm sorry for not providing exact direction. Try the California Department of Fair Employment and Housing's Fact Sheet entitled Employment Inquiries. As for a starting place on the privacy issue, try reviewing the California appellate opinion in Soroka v. Dayton Hudson. I trust these documents will be of interest. Dave Arnold, Ph.D., J.D. |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 10:02 AM EDT
|
|
Posts: 120
First: 8/23/2006 Last: 9/29/2006 |
so you are making a connection between a psychological profile and pre-employment testing with an interviewers ability to ask questions in general.
help me understand your logic |
|
|
Can candidates omit crime that's more than 7 years old?
posted at 9/14/2006 10:14 AM EDT
|
|
Posts: 120
First: 8/23/2006 Last: 9/29/2006 |
I hit post reply to soon...
Further, what was done with the information. In this instance it is obvious that the individuals were not hired giving the applicant/candidate cause to conclude it was because of the psychological profile (perhaps even sour grapes?). The matter then became the validity of the profile. Had the individual been hired would this case have prevailed? I doubt plaintiff could have made a causal connection thereby negating any attempts, even within the abstract California legal system, to prevail becauss their was no damage. I have never stated that the practice was acceptable (read my original response to this post) but I have said that any question can be asked, even though it is advisable not to ask unrelated questions or potentially risky questions( regarding matters most commonly associated with so called protected class) in an interview. A large difference exists between what is asked verbally and what is conducted in writing, especially when using psychological testing. In the OP's original question we were addressing convictions and criminal history, not psych testing. Never the less I see no causal connection between this case and the issue at hand. This case does not preclude the casual questioning of an individual but does make a case for formal questioning that has no remote connection to the position at hand. This case, as one reads, involved psychological testing, not a spoken exchange of words. I still see no legal decision provided by anyone that prohibits that casual questioning, even if the interviewer were to err and ask deeply personal questions. I do hold that the practice is ill advised but not illegal. Further, when factoring in the ever present risk assessment and the propensity for litigation the position that great care must be taken in ensuring only questions directly related to the job be asked becomes unrealistic and over bearing. In short, it lends further credibility to the commonly held notion that HR types and those who advise them in technical areas are more focused on exorbitant conspiracy theory and mega disaster than the reality of workplace issues. |
Forums » Topic Forums » Recruiting & Staffing » Can candidates omit crime that's more than 7 years old?
