Best practices for Oklahoma employers when inquiring about criminal histories

You’ve probably at least heard of the so-called “Ban the Box” movement, a campaign aimed at convincing employers to remove any checkbox on applications designed to elicit information regarding an applicant’s criminal record. Many states, counties and cities have enacted “Ban the Box” legislation, but it’s certainly not the law in all jurisdictions. And the “Ban the Box” laws in place are not uniform.

Oklahoma has its own version of “Ban the Box.” On February 24, 2016, Governor Mary Fallin signed Executive Order 2016-03, which prohibits state agencies from asking about felony convictions. That order does not apply to jobs for which a particular criminal history disqualifies the applicant as per law or regulation. It also does not apply to private employers. It does, however, note that 1 in 12 Oklahomans is a convicted felon.

The U.S. Equal Employment Opportunity Commission has taken the position that employers should not inquire about applicant arrest or conviction records because the practice has a disparate impact on racial or ethnic minorities. This is the EEOC’s interpretation of the law, not the law itself, but will necessarily guide the EEOC in its own investigations and legal actions. The EEOC is clear that employers can broach these issues during job interviews, provided that the “the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”

Best practices for minimizing potential liability

Oklahoma employers are free to inquire about these topics on job applications, but should adhere to the following practices in order to minimize potential liability.

First, respect the EEOC guidance and determine which types of criminal activities, if any, are incompatible with the job duties of each particular position to be filled. Review applicable job descriptions. Discuss essential functions with supervisors. An employer should be able to explain why it has a need for the conviction information requested. For instance, a prior conviction for embezzlement may rule out an applicant applying for a bank teller position, but it may not have any impact with respect to a warehouse position. While the EEOC would likely find the first inquiry permissible, it would likely feel very differently about the latter. FULL ARTICLE