What Does A Criminal Record Mean For Job Applications In Oklahoma?

“Have you ever been convicted of a crime? ”For decades, this question was a near-universal feature of U.S. job applications. Employers came to widely depend on the question for screening applicants, often allowing the existence of a criminal past, rather than the applicant’s knowledge, skill, and experience, to make a hiring determination. Limiting job opportunities in this manner only adds more challenges for those with a conviction on their record—the conviction also typically presents significant barriers to gun ownership, voting, running for office, obtaining college and small-business loans, and gaining access to certain types of occupational licenses. These barriers often have the opposite of their intended effect, damaging both former offenders’ lives and American society.

Is it Legal to Ask About Criminal History on a Job Application?

In short, yes. There is no federal law prohibiting employers from asking applicants about their criminal history, but this type of question is becoming more legally complex because it can prevent certain protected groups from being hired, which is discriminatory. The Equal Employment Opportunity Commission (EEOC) states, "as a best practice, and consistent with applicable laws, the Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."

Arguments Against Asking About Convictions on Job Applications

Critics of this question have argued that if offenders seeking employment had a chance to prove themselves beyond the initial application, they’d have a fairer shot to explain themselves later during interviews or following an offer. At that stage, the conviction would still surface during a standard background check unless the individual had taken the additional step of seeking an expungement of their record.

Oklahoma has recognized that limiting job opportunities for offenders with this question often prevents them from successfully re-entering society, causing them to circle back into the corrections system time and again. One in three Americans has a criminal record, and without intervention, over two-thirds of people released from prison will be arrested again in three years. Some 60,000 people in Oklahoma are shadowed by past felony criminal records for simple drug possession, which voters have determined should now be charged as a misdemeanor.

The “Ban the Box” Movement

Criticism of criminal record questions on job applications prompted the so-called “ban the box” movement beginning in the 1990s, which centered on the belief that employers should consider a job candidate’s qualifications first, without being influenced by the stigma of a conviction or arrest record. Advocates hoped to give former offenders improved chances of competing effectively on job applications.

Ban the Box policies typically provide job applicants with a fair chance at employment by removing conviction and arrest history questions and delaying background checks until later in the hiring process. Hawaii was the first state to pass ban the box policies in 1998 and since then, 26 other states and Washington D.C. have enacted ban the box policies. The idea gained significant steam during the 2008 economic recession when many Americans found themselves newly unemployed for the first time in years or even decades and hamstrung by past mistakes. Many leading employers in the United States were already taking steps not to immediately ask applicants about criminal histories, including Walmart, Facebook, Starbucks, and Target.

Criminal Justice Reforms in Oklahoma

Oklahoma is one of the states implementing criminal justice reforms to combat the negative impact of a criminal record.

In 2016, former Oklahoma Governor Mary Fallin signed an executive order requiring state agencies to “ban the box,” effectively eliminating questions about felony convictions from employment applications. The order does not prevent prospective employees from being asked about felony convictions during the interview process or prevent criminal background checks, but it does give offenders a chance to move beyond the initial screening process and explain their history in person.

Additionally, the Fair Chance to Compete for Jobs Act of 2019 (FCA) prohibits federal agencies and private companies that hold federal contracts from asking employees about criminal history prior to making a conditional offer of employment.

Expungement in Oklahoma Gives More Options

Per Okla. Stat. §22-19, employers cannot ask applicants about expunged or sealed records. You are entirely within your rights if you refuse to disclose a sealed or expunged record when applying for a job, and cannot be denied employment on that basis. In many ways, obtaining an expungement is well worth the effort as it can open the door to more employment opportunities and protect your privacy.

Another notable criminal justice reform in Oklahoma came in May 2019 when state policymakers passed HB 1269 making certain drug and property crimes less severe. The legislature also passed bills expanding the ability of former offenders to obtain certain occupational licenses and expunge nonviolent felony criminal records. Tens of thousands of people in Oklahoma are now eligible for expungement simply for having once been convicted of a nonviolent drug offense. If they pursue an expungement, they will legally be able to say they were never convicted of a crime on job applications (as well as housing, school, bank, and similar applications).

The bottom line

Until questions about arrests and criminal record are universally removed from the job applications, expungement remains the most effective way to ensure that past mistakes do not continue to affect job prospects. In Oklahoma, expungement means an applicant does not have to disclose the expunged record to a potential employer. Oklahomans need to know that they have options for dealing with a previous conviction and expungement is one way they can get back to life.