Criminal history question timing: 2 Maine checkpoints

Key takeaways

• in Maine, according to Maine Legislature, the question belongs at the interview or once the person is determined otherwise qualified; the application may ask only where a legal obligation not to employ people convicted of certain offenses applies, and only about the offense types creating it.
• in Maine, according to Maine Legislature, the initial application may not carry wording that bars a person with a criminal history from applying.
• in Maine, according to Maine Legislature, the applicant gets a chance to explain, including post-conviction rehabilitation.
• Colorado and Minnesota each need their own source check before you copy any timing or record rule.

Why timing of the question matters

Timing is a sequencing question, so start with the order your team uses today. Write each step down, from the posting through the interview, the offer and the file. Mark the point where an applicant is determined otherwise qualified, which is a timing the Maine statute allows, according to Maine Legislature. That list becomes the baseline for every check in this guide.

Colorado shows why the order matters. The Colorado bill page, according to Colorado General Assembly, includes the wording "Inquiring about an applicant's criminal history on an initial application." That wording describes a bill, so this guide does not describe it as current law. Your Colorado checklist should therefore keep that subject as a flag to review, not as a finished rule.

Keep each state's timing on its own line in your checklist. The Maine wording above belongs to Maine, so do not copy it into a Colorado or Minnesota form without checking that state's source first. Ask whoever reviews your forms to label each rule with the state it came from. Good labels make the next review faster.

Write one short line for each state that states the step and the source. A single line for each state is short enough to check before each hiring cycle, and it gives you a clear point to confirm before an applicant reaches the interview. The line can be one sentence with the link beside it. Date the line so the next check shows whether it changed.

The table below sets out the quoted wording from each source.

Before you post: the application form

Criminal history stays off the initial application in Maine

The form and the posting come first, because applicants read both before they reach an interview. Maine's statute, according to Maine Legislature, bars stating on an initial employee application form or advertisement, or specifying before the person is determined otherwise qualified, that a person with a criminal history may not apply or will not be considered. You should read every line of your posting and application for that wording before you publish the posting. If your posting came from a standard form, check that form too.

Maine has an exception to keeping the question off the form. An employer that is subject to an obligation imposed by a federal or state law or rule not to employ a person convicted of certain offenses may ask on the form. In that situation, according to Maine Legislature, the application questions are limited to the types of criminal offenses creating the obligation. Your form should ask about those offenses when the exception applies to your position.

If the position is in Maine, mark each criminal history question on your draft form and note whether the exception above applies. Keep the marked draft with your hiring file so a reviewer can see why each question sits where it does. Redo the mark-up each time the form changes.

Keep a separate application check for Colorado and Minnesota. The Maine exception applies to Maine positions, so do not carry it into those states. Confirm any Colorado or Minnesota application rule in its own source before you publish a form for those states. Those sources are the reference for those states, not this guide.

You can read the final form as an applicant would, and flag any criminal history line that appears earlier than the allowed point. Send the flagged lines back to whoever wrote the posting, so the fix reaches every version. Then save the reviewed version with its date. For a wider check on selection steps, see Validate selection procedures: 7 review topics for hiring.

During the interview: when you may ask

Questions wait until the interview or once otherwise qualified

Maine's statute, according to Maine Legislature, says an employer may inquire about a prospective employee's criminal history record information during an interview. Your interview guide should hold the question for a Maine position until the point the statute allows. Write the question into that guide with a note that names the Maine source.

You can confirm the qualification steps first, then ask the criminal history question once those steps show the applicant is otherwise qualified. Your notes should show the order, with the date the applicant was determined qualified and the date the question was asked. Your question wording should match for every applicant in the same role. For more on consistent interview design, see Structured interviews: 8 checks for fair hiring.

The Maine timing described here applies to Maine, and you should not assume it applies in Colorado or Minnesota. Check each state's source before you copy any interview wording into a script for those states. Keep those scripts in separate folders so a reviewer can see which state each one covers. Keeping a separate script for each state ties the wording to its source.

You should read your interview script line by line before the next round of interviews. Then test the script once with a colleague who did not write it, and note any question that still comes too early.

Record the point in the process where you asked. A short note in the applicant file, with the stage name and the date, lets a later reviewer confirm the order. This note is an editorial suggestion, not a legal instruction. Keep the note brief so it is easy to fill in during a busy week. Attach it to the interview record, not the posting. That keeps the order and the question together in one place.

Letting the applicant explain

The applicant gets the chance to explain

The duty in Maine attaches to the employer that inquires, according to Maine Legislature, so the explanation step follows the question rather than coming before the question. Plan that step into the same conversation as the question, not in a separate call. Pause after the question so the applicant can answer in full. Write a single prompt on your script that invites the explanation without judging it.

Post-conviction rehabilitation is part of what the applicant may explain, according to Maine Legislature, so your prompt should leave room for information about changes since a conviction. Let the applicant choose what to say and how much detail to give. Do not steer the answer toward a result you have already chosen. Thank the applicant and move on once the answer is complete.

Write down the explanation in the applicant's own words, along with the date and the stage of the process. Keep the note short and factual, and avoid adding your opinion about the applicant. Store the note with the interview record so a later reviewer can read it in context. If the applicant asks for a copy, follow your own written policy.

This explanation step comes from the Maine statute and applies to Maine. If you hire in Colorado or Minnesota, check that state's source for any similar step before you assume one exists. Do not add the step to a Colorado or Minnesota script without a matching source. Keep the Maine step labeled as Maine in every script you share. That label keeps each state's wording separate.

Keep your follow-up questions to what the applicant needs to explain about the conviction and its circumstances. Avoid asking about unrelated history, because the step covers the record in front of you and its circumstances. If an answer goes beyond the record, note that in your file and move on. Keep follow-ups short and written in the same form for every applicant.

Records Minnesota lists and what to leave out

Records to leave out: arrests without conviction, expunged and no-jail misdemeanor records

The Minnesota section begins with records of arrest not followed by a valid conviction, according to Minnesota Legislature. Your applicant file should flag any arrest record that does not show a valid conviction. Set that flag before you read the rest of the record. Then note the decision in the file with the reason.

The next entry covers convictions which have been, pursuant to law, annulled or expunged, according to Minnesota Legislature. Check the applicant file for an expungement or annulment record before you rely on a conviction line in your review. As an internal review practice, set the expunged record aside and note that you did. If the status is unclear, pause the decision and confirm it with the records office named in your own procedure.

A further kind is misdemeanor convictions for which no jail sentence can be imposed, according to Minnesota Legislature. Check the possible sentence for the misdemeanor before you treat the record as a reason to decline an applicant. Keep the same check for every applicant who has a misdemeanor record. Write the check in your file with the date you made it. The decision then rests on the record type you noted.

Do not imply that other record types are barred, and do not carry this Minnesota list into Maine or Colorado. The list applies to the Minnesota section. Mark the Minnesota list in your reference notes with its source link. Confirm the list against the current text before you change a form. Keep the change dated and tied to the statute you checked.

Your checklist should show the record type next to each applicant question, so a reviewer can see why an entry was set aside. Name the record type in plain words, such as arrest without conviction, expunged record, or misdemeanor with no jail sentence. Use the same plain words in every hiring file so reviews match. A consistent label is easier to check in the next review.

After the offer: what to keep on file

After the offer, the file should show when the criminal history question was asked and what stage the applicant had reached. You can keep that note with the offer letter and the interview notes, and keep the application form separate from it. A plain line with the stage name and the date is enough to show the order. Use the same format for every applicant in the same role.

The applicant's explanation belongs in the file, in the applicant's words, if one was given. Write the date, the question asked and the answer in a few plain sentences, and avoid adding opinions about the applicant.

Criminal history notes should be stored apart from general personnel notes, so people who need the timing can find it without seeing unrelated details. Your access list should cover the manager who runs the hiring step and the people who review that step. Review the file each time your application or interview script changes, so the record matches the form you actually use. Date each review. The date shows when the file was last checked.

If a question was asked too early, write down what was asked and when, and then correct the form and the script before the next applicant. You should not delete the earlier version of the form, since it shows what was used. Date the replacement so the change is easy to trace. Note the reason for the change in one sentence. Mention the change at your next hiring review.

You can keep the Maine, Colorado and Minnesota sources as separate references in the file, one for each state, with the link beside each rule. When a source changes, the reference note tells you which lines to check. Review the links before each new hiring cycle, and date the review. Your Colorado reference should stay marked as a bill page, not current law.

Your next step on timing

Your next step is to check your application form and interview script, and move any criminal history question that comes before the allowed point, unless a Maine exception reason applies to it. For Maine positions, according to Maine Legislature, the allowed point is an interview or once the person is otherwise qualified. Do that review before the next posting goes live, so each form matches its own state's source.

Criminal history timing FAQ

Can I ask about criminal history on the application?

In Maine, the application may ask about criminal history only where a legal obligation not to employ people convicted of certain offenses applies, according to Maine Legislature. The same statute bars wording on an initial application that says a person with a criminal history may not apply or will not be considered. You should check other states' sources before copying either point.

When may a Maine employer ask?

A Maine employer, according to Maine Legislature, may inquire during an interview or once the prospective employee has been determined otherwise qualified for the position. That timing comes from the Maine statute, so it does not set the rule for Colorado or Minnesota. For a Maine position, the question may be asked at the interview or once the applicant is determined otherwise qualified, whichever applies first in your process.

Must I let the applicant explain?

Under the Maine statute, according to Maine Legislature, an employer that inquires must afford the prospective employee the opportunity to explain. The explanation covers the information and the circumstances regarding any convictions. The statute, according to Maine Legislature, includes post-conviction rehabilitation in that explanation, so your conversation should leave room for that answer.

Which Minnesota records are listed?

The Minnesota section lists records of arrest not followed by a valid conviction, according to Minnesota Legislature. It also lists convictions which have been, pursuant to law, annulled or expunged, and misdemeanor convictions for which no jail sentence can be imposed. You should check each record type against the current text before changing a form.

Do Maine rules apply in Colorado or Minnesota?

No. Maine's timing comes from the Maine statute, according to Maine Legislature, so you should not treat it as the rule in Colorado or Minnesota. Check the Colorado and Minnesota sources separately before you apply any timing or record rule in those states.

Is the Colorado bill current law?

No. This guide does not describe the Colorado bill as current law. The Colorado page, according to Colorado General Assembly, records the legislative step "Refer House Bill 19-1025, as amended, to the Committee of the Whole." You should confirm the current Colorado text on your own before you rely on any Colorado wording.