Can I be asked about being arrested in a job interview?

Applying for jobs can be hard, and certain experiences in an applicant’s past can make it even harder.  One question we get asked fairly often at Gold Star Law is whether an employer can ask about your criminal record when you apply for a job.  Understandably, job applicants with a criminal background are often reluctant to share those details with a potential future boss, and want to know what can be asked and how much they have to disclose.

The answer to this question has a few parts.  The first is about what your employer is allowed to ask, the second is about what you are required to disclose, and the third is about how your employer is allowed to use the information.

First, what can a potential employer ask about an applicant’s criminal history in a job application and/or interview?  In Michigan, employers are not allowed to ask whether an applicant has ever been arrested or whether an applicant has been charged with any misdemeanors that did not result in convictions.  Although these questions may not seem discriminatory on their face, Michigan courts have found that they have a discriminatory impact in the hiring process.  Black people, particularly black men, are arrested at a significantly higher rate than their white comparators.  Black men are also statistically more likely to be charged with having committed a misdemeanor.  However, the actual conviction rates following these arrests and charges is not as disparate.  That means that although a black man is a lot more likely to be arrested and charged with a misdemeanor than a white man, he is not a lot more likely to be found guilty (at least, not by as wide of a statistical margin.)  Because of this difference, it is illegal in Michigan to ask whether someone applying for a job has been arrested or charged (but not convicted) of a misdemeanor because black applicants are a lot more likely to have to answer “yes,” even if they were ultimately not found to be guilty.  The question may not ask about race specifically, but it does affect people of different races in different ways.

Second, what are you required to disclose about criminal history if asked?  Employers are not required to disclose information that they have a civil right to withhold.  If a job application does ask you about your arrest record, and you fail to disclose that you have been arrested, this is NOT considered to be providing a “false statement.”  Normally, employers who find out that an employee has lied on a job application can use that lie as a legal, non-discriminatory basis to fire the employee.  Additionally, if an employee later files some sort of wrongful discharge claim against an employer and it comes out in discovery that the employee lied on a job application, the employer can use that to show that the employee WOULD HAVE been fired once the lie was discovered and cut off an employee’s damages.  However, there is an exception to this for arrest and misdemeanor charges.  Because an employer is not allowed to ask these questions in the first place, if an employee fails to disclose an arrest or misdemeanor charge when asked an employer who later discovers the truth cannot use this information as a basis to fire the employee and cannot use it as a defense in a lawsuit.

Third, what is an employer allowed to do with information about an applicant’s criminal history?  Although an employer is not allowed to ask about arrest records or misdemeanor charges that did not end in a conviction, employers are allowed to ask applicants about actual criminal convictions.  However, this does not mean that an employer can use criminal history as an absolute bar to employment.  Because criminal history also has a disparate impact on certain races, employers must show that there is a legitimate, non-discriminatory reason why the applicant’s criminal history is disqualifying for the job.  Generally, employers need to show how the criminal charge is related to the job.  For example, if you have an applicant with a DUI who is applying to be a school bus driver, it is reasonable to say that the conviction disqualifies the applicant.  The job involves driving and affects the safety of others, so it is perfectly reasonable to say that someone who has a proven history of unsafe driving cannot hold that position.  However, if you are interviewing people for a receptionist position in an office, a DUI is not relevant.  The job itself does not involve any driving at all.

If you believe you have not been hired or have lost a job due to discriminatory reasons, include facially neutral policies that have a discriminatory impact, call Gold Star Law for help.