To Disclose or Not Disclose: That is the Question

For many employers, the information found in a background investigation can often inject more ambiguity than clarity into the hiring process.

The same can be said of job candidates who may be uncertain about if, how, when, or to whom they should disclose information about a past indiscretion.

The many dimensions of this issue were highlighted in the responses to the below question which was posted as a poll on the LinkedIn page of Liz Ryan, founder, and CEO, of Human Workplace:

I am job hunting. I have a DUI from three years ago. It will surely come up in a background check. Should I mention it in the interview?

The question clearly struck a chord with Liz’s followers. It racked up 19,627 votes, with respondents nearly split on the issue. When the poll closed, the results were as follows:

53% - Yes, be upfront about it.

42% - No, wait and see if they ask.

5% - Other

If that wasn’t enough to make you wonder about the most appropriate action, there have been 254 additional comments that cast further doubts on the best way to proceed.

Here are a few examples: “Depends on the job.” “Depends on who conducts your interview.” “Depends on the size of the organization.” “Depends on the type of company you are applying to.”

In considering the broader question of disclosing information about a past indiscretion, it is helpful to understand how the background screening process works, what information can be shared, and how companies may act on what they learn.

What Can be Found and Shared in the Background Check

While there is some variance across different states (more ambiguity!), New York State law dictates – and the federal EEOC guidelines recommend – that only misdemeanor and felony convictions be documented in background investigation reports.

That means arrest information should not be shared with employers in states governed by this requirement.

The next consideration is the “lookback” period. In the question posed above, the individual says that their DUI conviction happened three years ago.

As a general rule, we can access ten years of records across the U.S., so this person’s DUI fits easily into that window.

It’s important to also be aware that conviction information is accessible as far back as it exists, though that varies widely across states and municipalities.

While most background checks are guided by the ten-year lookback period, that timeframe does not necessarily limit what is reported.

The Consequences of a Conviction

So does the presence of a conviction mean that any job offer will be automatically rescinded? This is another area where it’s significant to understand the laws of your state.

Once again, New York State law and the EEOC guidelines are in alignment on this subject.

According to Article 23-A of the New York State Corrections Law, employers must do an individual assessment on every person flagged in a background check and document the reasons behind the company’s decision not to move forward with the candidate.

In other words, states like New York are not permitted to have a blanket “do not hire” policy for any criminal conviction.

Best Practices for Employers and Job Candidates

Considering all the laws and nuance governing this topic, it’s easy to see why the poll was largely divided down the middle. The fact is that both the employer and the prospective employee each have some responsibility in these situations.

It’s good practice for employers to make clear up front that a background check will be part of the hiring process (Note: New York City’s Fair Chance Act makes it illegal for most employers in the City to ask about the criminal record of job applicants before making an offer).

At Commercial Investigations, we discuss the prospect of a background check several times during our own interview process. This gives the interviewee multiple chances to disclose anything relevant from their past and, if they choose, withdraw their candidacy.

When asked, employees should be forthcoming with HR about any information that will, or is likely to, be found in a background check.

Being forthright about a past indiscretion and perhaps offering some context about it, removes the element of surprise when the background report is shared and demonstrates accountability for your past mistakes.

The bottom line is that, in our experiences, a person doesn't get the job because of a past conviction. They don’t get the job because they failed to tell the truth.

Want to learn more about what is contained in a background check? Watch our What You DON’T Know webinars.