What You Need to Know Before Asking About an Applicant’s Criminal History

News and insights for job seekers and hiring managers.

What You Need to Know Before Asking About an Applicant's Criminal History
What You Need to Know Before Asking About an Applicant’s Criminal History

Depending on the nature of the job, it’s normal for employers to assess an applicant’s driving record, credit score and history, and even encounters with the law before making any hiring decisions. 

But as more and more employers turn to third party agencies and investigators to handle the task of vetting potential employees, unanswered questions about the legality of background checks have generated half-truths and misconceptions about this process.

While background checks are perfectly legal, employers must stay within legal limits when using information about their applicants’ histories, especially their criminal history.


About the FCRA

When an employer hires a third party to conduct a background check and obtain records from government agencies, these reports are subjected to a number of state laws, not to mention the federal government’s Fair Credit Reporting Act (FCRA).

Passed in 1970, the FCRA regulates the process of collecting credit data and reports from relevant agencies, ensuring these activities yield accurate information. Criminal background checks can sometimes lead to incomplete information, leaving out things like dropped charges and even exonerations and expunged convictions.

For starters, the FCRA requires employers to obtain the written consent of applicants before they can run a criminal background check. More importantly, applicants need to be notified their record may lead to their disqualification from the job.


What About in Kansas?

While certain states have prohibited employers from using an applicant’s criminal record to make job-related decisions, Kansas law explicitly allows employers to require job applicants to sign a written release giving the company permission to access their criminal record as part of the recruitment process.

Kansas also protects employers from liability for any decision based on a candidate’s criminal history, provided any information they find “reasonably bears” on a candidate’s trustworthiness or the safety of the company.


What Does the Kansas Human Rights Commission Have to Say?

To protect the rights of job seekers, the Kansas Human Rights Commission has released a guide, “Guidelines on Equal Employment Practices:  Preventing Discrimination in Hiring,” which discourages employers from asking applicants about their arrest history and any related information, unless these occurrences are “substantially related” to their ability to do their job.

To learn more about the many rules governing criminal background checks, schedule a consultation with the staffing services providers of Top Notch Personnel. Contact our offices to get advice on legal and ethical recruitment.


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