Evaluating Whether You Should Hire Candidates with Past Criminal Histories

December 10, 2019 | Kristen Hildebrant

At a time when the unemployment rate is 3.8 percent, SHRM data says that more than 7.8 million jobs will need to be filled by 2020. As HR leaders, we’re always looking for talent pools to tap for new candidates. While this typically includes campaigns to specifically recruit diverse candidates, persons with disabilities, and other marginalized groups, there is a trend toward recruiting candidates with past criminal histories. With nearly 700,000 people being released from jail and prison every year, employers are more open to hiring the formerly incarcerated.

In fact, a 2019 survey of consumers by SHRM indicated that 78 percent of consumers were comfortable buying products from companies that hired individuals with a non-violent criminal record, for customer-facing roles. SHRM announced in 2019 that employers representing over 60 percent of employees have signed onto an initiative entitled “Getting Back to Work,” committing to changing their recruiting practices to include those applicants with criminal backgrounds.

This can certainly help address the talent shortage, but it’s important to understand that making the decision to hire people with criminal histories won’t eliminate the need to conduct background checks and employment screening. Having this information allows the employer to evaluate risks and make the best and most informed hiring decision.

 

The Discrimination Consideration When Hiring Employees with a Criminal History

Because of the potential for discrimination, many states and cities have laws known as “Ban-the-Box” legislation. This legislation limits what an employer can ask candidates on a job application or during the early stages of the screening process. Laws and policies require or recommend that employers consider how all candidates meet the qualifications for jobs prior to considering criminal record information.

On a federal level, legislation intended to ban the question about criminal records on all job applications was introduced in Congress in 2012 and was tabled, but with no vote taken. However, the U.S Equal Employment Opportunity Commission (EEOC) has designated exclusion of a criminal record box as a best practice for equitable hiring. The EEOC recommendations relate to Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits employment discrimination based on race, color, religion, sex (including pregnancy), or national origin. Title VII applies to all employers that have 15 or more employees, including private sector employers, the federal government and federal contractors. According to the EEOC, an employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate Title VII.

The EEOC recommends that companies “eliminate policies or practices that exclude people from employment based on any criminal record” and that training on Title VII and employment discrimination should be conducted for managers and hiring decision-makers in order to ensure compliance.

 

What to Consider When Hiring Candidates With Criminal Histories

In all states, you can ask about felony convictions before you actually hire an employee. The Ban-the-Box legislation prohibits companies from asking about criminal history before they are ready to make an offer. When a company is ready to make an offer, a background check can be conducted, which includes asking about and screening for any convictions.

There are several factors to take into consideration once you have received criminal history as part of a background check, including how long it has been since the conviction, what the conviction was for, how the conviction relates to the job the candidate is applying for, and if you gave the candidate the opportunity to explain the conviction.

For example, a candidate convicted of a minor theft six months ago might be considered untrustworthy, but if the conviction happened 20 years ago and no other criminal history is present, that may be a different result. And if you’re hiring for a position that requires access to money, a candidate convicted for embezzlement or theft from an employer can be excluded, but it isn’t necessarily relevant if you’re hiring for a position in which the job requires no access to money.

If a candidate has a conviction that you believe disqualifies them for the position, the EEOC requires you to give the person a chance to “demonstrate that the exclusion should not be applied due to his particular circumstances.” This means that you’ll have to sit down and listen to what the candidate has to say and collect additional information. It’s also important to document this information.

Because the laws vary from state to state, and the types of convictions uncovered in a criminal background check can be complicated, working with a vendor partner that has experience and expertise in this area is recommended. You can choose to perform these evaluations internally, but in the case of hiring a candidate with a criminal history, you’ll want to consult with an employment law attorney. Many companies choose not to do so because of the expense. If you’re working with a vendor partner for criminal background screening, you can ensure compliance and have a trusted advisor to avoid any current or future liability.

The EEOC also recommends that companies develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct. Your vendor partner can help with your company policy and procedure so that you’re making the best hiring decisions based on your background checks.

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