Like countless other employers, camps often wonder what they can and cannot ask candidates about their criminal history during the job application process. This issue primarily turns on applicable "ban the box" or "fair chance" laws, which restrict questions about criminal history before making a conditional job offer.
While these laws vary by city and state, they often include a requirement to the following effect: Employers can't ask about criminal convictions prior to making a conditional job offer, unless another law prevents the employer from hiring an employee with a particular criminal background.
What does it mean to make a conditional job offer?
A conditional job offer is a preliminary offer of employment that's contingent on completing certain requirements, such as verification of the right to work in the US, reference checks, and a background check. If your camp is subject to a ban the box law, it typically means that you should refrain from asking about an applicant's criminal history during the initial stages of the hiring process. The goal of these laws is for employers to assess each applicant's qualifications, skills, and experience without being unduly influenced by any considerations regarding criminal background.
What is the relevance of another law disallowing camps to hire individuals with certain backgrounds?
As already noted, ban the box laws tend to be state and city-specific, and often have significant differences between them. Some ban the box laws (but not all) have a provision saying that employers are allowed to ask about a specific criminal background if another law does not allow the employer to hire someone with that particular background.
For example, if an applicable state law prohibits camps from hiring someone who was found guilty of abuse, then a camp can ask about that particular criminal background, but not other criminal records, during the preliminary application process and before making a conditional job offer.
To determine if you can ask this type of question on a job application or during an interview, you would need to answer three preliminary questions:
Is my camp subject to an applicable ban the box law? (Many states and cities don't have one.)
If my camp is subject to a ban the box law, does it allow questions about criminal history, before making a conditional job offer, in the event that another applicable law prohibits hiring an employee with a particular history?
Does any law prohibit my camp from hiring employees with a particular criminal background?
If the answer to all three questions is yes, then you can ask about that particular criminal history before making a conditional job offer.
The alternative to researching answers to these three questions is to simply save all criminal background questions until after you make a conditional job offer. Of course, you do need to make sure that the questions you ask are allowed under the law, regardless of when you ask them.
Can you ask about arrests?
Another location-specific issue is whether you can ask about arrests, charges, and accusations that never led to convictions. Taking New York City as an example, regulators caution employers:
"You may never ask about or consider arrests that did not result in a criminal conviction. . . . This information should never appear on a background check and cannot be asked about or considered at any point in the hiring process. If you find out about it anyway, you cannot use it in an employment decision."
By contrast, looking across the Hudson, New Jersey's law does not have a similar restriction. While New Jersey regulates when these inquiries can be made, it allows employers to ask about "criminal records," the definition of which includes "notations of arrests, detentions, indictments, or other formal criminal charges . . ."
So whether arrests can be considered at all becomes a location-specific analysis based on the specific language of the applicable law.
How can you use the information gathered in criminal background inquiries?
Assume that you inquire about criminal history after making a conditional job offer, and you learn that a particular applicant has a criminal record. How you can use that information is another area that's often regulated by state law.
Some ban the box laws say that employers can only take employment action based on criminal history if the criminal history has a reasonable connection to the job. These laws would restrict an employer from withdrawing an offer because of an applicant's criminal background, unless the criminal background is connected to the job and calls into question the applicant's ability to do the job.
Again, the details of this type of restriction, if it exists at all, depend on applicable state and local law.
How does the Fair Credit Reporting Act come into play?
The Fair Credit Reporting Act (FCRA) is a federal law that imposes certain requirements when employers obtain consumer repots from consumer reporting agencies. Under the FCRA, the definition of "consumer reports" includes criminal records. Thus, before you obtain criminal records from a background check agency, the FCRA requires that you provide employees with a background check policy and have them sign a separate background check consent. State law may impose additional disclosure and consent obligations.
Could there be a conflict between applicable laws?
As more states and cities pass ban the box laws, I wouldn't be entirely surprised to see a conflict between two laws in the same state, especially when local law comes into play. For example, one law may dictate that a person who was arrested for certain offenses cannot work in a particular industry, while another law may state that employers cannot ask about arrest records at all. What should employers do in that situation? Beyond seeking the advice of counsel, it may be a good time to request an opinion from one of the relevant regulatory agencies, before choosing a path forward.
Conclusion
Background checks and criminal history inquiries are certainly a best practice across the camp industry. They're often required by camp insurance providers and they may be mandated by state camp regulations. But before engaging in these inquiries, camps should implement policies to ensure compliance with applicable ban the box laws, the FCRA, and the FCRA's state analogs.