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How to deal with a job applicant’s past

Dear Mary, I am hiring for a new position and I’ve been researching all of the applicants online. Imagine my surprise when I found out that one of the applicants was recently charged with a pretty major offense. Can I ask him about it? If he really did it, can I pass on hiring him?

When it comes to asking questions about an applicant’s criminal history, the general rule is that you may not ask an applicant to disclose information about an arrest that did not result in a conviction.

You may ask a job applicant if they have prior convictions or whether they are currently facing pending charges, but you may not ask whether they have ever been arrested.

You are also prohibited from asking an applicant about participation in a diversion program. Diversion programs allow criminal offenders to avoid criminal charges and a criminal record, usually by educating the offender about avoiding offenses, providing restitution to victims, doing community service, and avoiding situations that may lead to future offenses.

However, there are exceptions to this rule. If someone is applying for a position in a criminal justice agency, or as a peace officer, or any position that relates to security, you may ask about an applicant’s criminal background.

If you’re running a health facility, you can ask about arrests relating to sex offenses if the job position is one where the applicant would have regular access to patients. An applicant’s character and prior conduct is relevant here because you, as the employer, are responsible for the safety and well-being of others.

If the position provides access to drugs or medications, an employer may ask about arrests involving controlled substances.

A public utility or cable company may ask about an applicant’s criminal history when the position would require the applicant to go into a person’s private home.

And finally, an employer may ask about pending criminal charges and about arrests for which the applicant is out on bail or on their own recognizance. This exception sounds like it fits with your situation.

The second part of your question is more complicated. If the conduct that resulted in an offense would indicate that the applicant is unsuitable for the position, then you may pass on hiring them. For example, if the position is for a bank teller and the applicant has a criminal record of embezzlement, not hiring them may be justified.

Whether conduct demonstrates unfitness for a position may be determined by considering the nature of the offense, the time that has passed since the conduct occurred, and the nature of the position.

An arrest alone is not evidence that a person has actually committed a crime. If the alleged conduct relates to the job, you should look at the circumstances surrounding the arrest and ask the applicant to hear their side of the story.

Once you’ve given the applicant a meaningful opportunity to explain an arrest, you should make a reasonable effort to determine whether or not that explanation is credible before you make an employment decision. Disqualifying an applicant based on an arrest only makes sense if it looks like the applicant really did engage in the offense, and that offense relates to the job.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

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