February 14, 2006 > Watercooler Counsel

by Rich Proulx

Q: I only want employees on the straight and narrow. Is it ok to ask about arrest records on the application?
-Concerned about Cons
Fremont

A: Asking about arrest records on a job application violates state law, according to Dean Fryer, spokesperson for the Ca Dept. of Industrial Relations. By including this information on an application, we can conclude that an employer decided the information was relevant to its employment decision. Screening out all applicants who have been arrested - and possibly discouraging those who have been arrested from applying - can be illegal. The reason is that in many regions African-Americans and Latinos are disproportionately likely to have been arrested. So, while screening out applicants with arrest records does not appear discriminatory on its face, it could have a discriminatory impact on these minority groups.

You can ask applicants about convictions (except those which have been sealed, expunged or statutorily erased). Before tossing out every application showing a record of a conviction, I should warn you that courts have come to different conclusions regarding the discriminatory impact of screening out prospective employees based on their convictions. The better course of action is to screen out an applicant if - after you've considered the nature of the job, the seriousness of the offence and the length of time since it occurred, and it appears the applicant actually did engage in the conduct for which they were arrested - the individual cannot be trusted to perform the job.

Q: I've decided to change careers. I've applied for several positions I am well qualified for. In interviews, I notice many of the applicants are younger. I still haven't been hired. What can I do?
-Older But Wiser
Newark

A: There's no doubt in my mind that the job market becomes a tougher place to be as you grow older. But, employers rarely inform applicants why they weren't hired, so it's hard to know if your age played a role. I suggest calling the hiring official or Human Resources Manager directly. Reiterate your interest in the position, ask why you weren't selected, and ask if there is anything you could do to increase your chances to be hired for future openings. If they refuse to tell you or you are unhappy with their response, contact the EEOC at 1-800-669-4000 to file a charge of age discrimination.

Rich and his team of government experts efficiently and effectively use your tax dollars to research your questions. Send your questions to richard.proulx@eeoc.gov, whose day job is Enforcement Supervisor for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.