Checking boxes and banning boxes: Compliance when considering criminal background

Q           We recently conducted a background check for a candidate we offered a job to and found the person has a pending felony conviction for theft that wasn’t disclosed. Because the job requires access to maintenance equipment with limited oversight, we’d like to rescind the offer and allow the person to reapply if the issue gets resolved. Are we allowed to do this, and are there any legal protections for the candidate?

Employers can generally consider criminal records when making final hiring decisions without violating a candidate’s legal protections.

A patchwork of state (and even local) “ban the box” laws govern whether and how employers can consider an applicant’s criminal background during the hiring process. While these laws vary in restrictiveness, they’re generally satisfied when an employer’s inquiry into criminal background occurs post-offer and when the revocation of an offer is based on a nexus between the criminal record discovered and the applicant’s job responsibilities. In other words, ban the box laws tend to be most restrictive during the pre-offer and prehire periods.