Fair chance or Ban-the-Box laws restrict an employer from asking about an applicant’s criminal background history in the early stages of the hiring process. And while there is no federal Ban the Box law that applies to private sector employers, the EEOC and the Arizona Civil Rights Division prohibit employers from asking an applicant about an arrest record absent a compelling reason to do so. Many Arizona municipalities (Phoenix, Tempe, Flagstaff, and Tucson) have nonetheless enacted Ban-the-Box laws prohibiting employers from requiring applicants to disclose a criminal background history until after the employer has made a conditional offer of employment. Employers should consult legal counsel about local laws governing the use of criminal conviction histories in the hiring process.
Employers, not subject to local ordinances prohibiting such inquires, may ask about criminal convictions on their job applications (e.g., where, when, final disposition of the case) and seek clarification through the interview process so long as a prior conviction is not an absolute bar to employment.
Criminal records are considered to be consumer reports. The FCRA and Arizona’s Consumer Reporting and Fair Credit Reporting statutes provide specific requirements for the dissemination of criminal history records and the release of criminal background information. See details above concerning the use of consumer reports including notice, disclosure, and consent.
Employers should review local laws or consult with legal counsel before asking applicants to disclose criminal history information.
Check in with us next week for additional best practices and tips on conducting background checks in California.
Find these tips and best practices useful? Check out Western Growers newly updated Personnel Procedures Manual (PPM) The PPM is an information-packed employer tool that provides helpful guidance for employers navigating the employer/employee relationship from pre-employment to termination. Click the PPM link in the body of the newsletter for more information.
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