Almost 50% of employers ask about criminal records on their applications. However, because some cities, counties, and states have implemented “Ban the Box” laws, it is important for an employer to know if he can ask that question on the initial application.

An employer must evaluate a number of factors before making a hiring decision for someone with a criminal record, such as the type of crime, the severity of the crime, how long ago it occurred, and how that conviction relates to the job.

In accordance with an EEOC guidance issued in 2012, employers are encouraged to develop an individualized assessment process which evaluates important factors surrounding a record and to allow the candidate to provide mitigating factors for why that record should not be considered.

If the employer makes the decision not to hire the candidate based on information in the consumer report, they are required to initiate the two-step adverse action process.