Request a Consultation
Offering Phone, Video, and In-Person Consultations 608-784-8310

Can You Ask About Past Convictions in a Job Interview?

As an employer, you want to choose the best employees possible. You will invest quite a bit of time and effort into properly training new employees, and you want to ensure that they are a good fit for your company. There are many concerns you may have about potential applicants, so it is important to understand the questions that you are allowed to ask during a job interview.

Protection Against Workplace Discrimination

The law provides protection for workers and applicants against discrimination. An employer cannot discriminate against someone based on their gender, sexual orientation, religion, nationality, and more. In some circumstances, an employee or applicant is protected against discrimination due to their arrest record or conviction. The employer must take care to ensure that they do not discriminate against someone on the basis of their arrest and conviction record except in circumstances where the job description requires inquiring about past criminal convictions.

What is An Arrest or Conviction Record?

Whenever an adult is arrested or convicted of a crime, a record is generated. An arrest record contains various information, such as that a person was detained, apprehended, held for questioning, taken into custody, indicted, or charged with a crime. A criminal record is held for all types of offenses, including both misdemeanors and felonies. The record may also include information such as how a case was resolved and whether someone was fined, put on probation, imprisoned, or paroled.

Substantial Relationship to Employment

An employer may only inquire about past criminal convictions when the job warrants it, when a past arrest or conviction is “substantially related” to the job. An employer may inquire generally in order to obtain information as it relates only to situations where the conviction could prevent a person from qualifying for a particular position. For example, if someone was convicted of OWI (operating while impaired), they may not be a suitable candidate for a position as a driver. The conviction must relate in a substantial way to the job position.

What Can an Employer Ask?

An employer may inquire about an applicant’s criminal convictions only as they pertain specifically to the potential job. The employer should make it clear that their question is only in relation to the job duties, and they will only consider the answer if it is relevant to the specific job. The employer must take care to ask only a general question in order to ascertain the necessary information. The employer cannot deny employment to someone strictly due to a past criminal conviction unless the conviction is explicitly related to the job at hand. The employer cannot make a decision not to employ someone because of an unrelated criminal conviction, regardless of how serious the offense is. Applicants and employees are afforded protection against discrimination against this type of activity.

It is important to note that an employer may refuse to hire an applicant or may fire an employee if they provided false information on their job application. If an applicant provides false or misleading information to an employer, the employer may take appropriate action, including failing to hire or termination. The action is in response to the applicant’s dishonesty rather than the substance of the falsehood.

To learn more about an employer’s responsibilities during a job interview or throughout the hiring process, contact us at Moen Sheehan Meyer, Ltd at (608) 784-8310 or online.

Published September 25, 2023
Posted in
Contact MSM Online Bill Pay