Does hiring someone with a criminal record give you pause? Learn what questions you can ask legally (and when) while also exploring other relevant factors.
Understandably, hiring someone with a criminal record can make employers nervous. And job candidates with a criminal history do tend to carry a negative stigma.
Most employers want to hire people who can demonstrate desirable characteristics, such as:
- Sound judgment
- Good ethics and morals
- Ability to follow rules
- Respect for authority and peers
Typically, however, these qualities aren’t associated with those who break the law. Furthermore, employers often see these candidates as people who have taken negative action on purpose and made poor choices. At best, they’re viewed as irresponsible and untrustworthy – even though that may not be a fair assessment in every circumstance.
Employers might be concerned for their company’s reputation if word somehow got out that an employee is a convicted criminal.
Depending on the severity of the crime in question, employers are most definitely justified in worrying about the safety of themselves and their staff.
But, in the majority of cases in which the situation is more nebulous, how much influence should a past criminal conviction hold over your decision to hire a job candidate?
A growing consensus
Despite some valid concerns about hiring someone with a criminal record, more employers and regulatory bodies are coming to a consensus that a criminal conviction is only one part of a person’s story. Certainly, a criminal record is relevant to the hiring process and something that warrants further investigation.
Yet it’s an increasingly accepted idea that there are too many unknowns about most convictions to automatically reject a person at the first step of the hiring process: the application. It’s only fair to meet with a person, get to know them as an individual, learn more about their qualifications and obtain the context surrounding their criminal history. In other words, employers are encouraged to capture a more nuanced, comprehensive picture of a person instead of reducing them to a “yes or no” checkbox on a form.
Across society, there’s a sense that people deserve second chances. To break the cycle of criminal activity and incarceration, people with criminal records need opportunities for meaningful employment.
So, what are some business benefits associated with having a more open mind on this issue?
- Companies won’t miss out on acquiring a potentially talented, high-quality employee by fixating on one facet of the candidate’s history.
- They might obtain an employee whose gratefulness at being given a second chance is only outmatched by their loyalty to the company.
What federal, state and local laws say
The latest Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act, overseen by the U.S. Equal Employment Opportunity Commission (EEOC), recommends that employers tread carefully when relying on arrest and conviction records in hiring job candidates and other employment decisions. The view of the EEOC is that employers should conduct an individualized assessment of job candidates with a criminal history, weighing the conviction against their qualifications and other factors.
No federal laws prohibit employers from inquiring about pre-employment arrests and convictions or running background checks. However, employers may not discriminate when using this information. Also, they do need to be mindful that questions about arrests or convictions may have a disparate impact on certain protected classes and could therefore violate Title VII.
Specifically, employers may not:
- Treat people with similar criminal records differently on the basis of any protected characteristic, such as race, national origin, sex or religion (and use the criminal history as a cover for discriminatory hiring practices)
- Use candidate-screening policies that “significantly disadvantage” individuals protected by Title VII
- Use screening practices that serve no meaningful purpose in helping employers determine the responsibility or safety of an employee
- Base hiring or employment decisions on arrest records alone, which do not provide definitive proof that an individual engaged in criminal conduct
If an employer plans to obtain information about a job candidate’s criminal history from a consumer reporting agency, they must adhere to the Fair Credit Reporting Act (FCRA) by:
- Disclosing the nature of the request in a separate document.
- Seeking the job candidate’s permission to request the report
- Giving job candidates a copy of their report and a summary of their rights under the FCRA before denying the candidate a job or taking any negative employment action based on the information contained within the report – and providing the applicant with the opportunity to respond
However, primarily at the state and local level, there’s a growing movement underway to prohibit employers from inquiring about a candidate’s criminal history – at least initially.
Many cities and counties across the U.S. have mandated that yes or no questions about criminal history be removed from job applications distributed by public-sector employers. These “ban the box” laws are intended to encourage employers to evaluate job candidates based on their qualifications first – free of any stigmas associated with a criminal history – and prevent them from immediately disqualifying candidates who have criminal records.
Fourteen states and 20 cities and counties have extended “ban the box” laws to the private sector.
Furthermore, as part of the Fair Chance to Compete for Jobs Act of 2019, most federal agencies and contractors may not ask job applicants about a potential criminal history until they offer a job to the applicant on a conditional basis. This law takes effect in December 2021.
Even for public- or private-sector companies not operating in areas where “ban the box” laws have passed, the direction of future legislation is clear. That’s why many companies have voluntarily opted to refrain from asking job candidates about their potential criminal history until much later in the application process. The updated standard practice is for companies to run background checks after interviewing candidates but before extending job offers, except where prohibited by law. (Certain state and local laws only permit criminal background checks post offer of employment.)
Five major considerations that can inform whether to hire someone with a criminal history
When hiring anyone, an employer is taking a risk to varying degrees. Certainly, hiring a convicted criminal may present a higher-than-average risk that things could go wrong or they could damage your business in some way.
But what are some factors that can help you determine how much of a risk you’re taking on when you consider hiring someone with a criminal record? How do you decide when it’s worthwhile to move forward with such a candidate? Consider the following:
1. Nature of the crime
The severity of a candidate’s criminal history is the first and most obvious indicator of the threat level to your employees and business. After all, crimes aren’t equal in nature. As an extreme example, murder and assault exist in a completely different category than a speeding ticket.
Think about how egregious – or how minor – the candidate’s crime is.
- Does the crime indicate a propensity for violence toward others?
- How likely is the individual to commit repeat offenses?
- Does the crime change how you think about that individual as a human being?
- Can you overlook the crime or not – even if the candidate is the most talented, high-quality applicant you’ve interviewed?
- Would you feel unsafe or uncomfortable in this person’s presence?
An additional note: In some cases, society’s standards for what’s considered “serious” criminal activity can change over time. For instance, attitudes toward marijuana use have evolved significantly over the last 30 years. If a majority of people no longer consider certain activity to be problematic or dangerous, your company may not be overly concerned about a job candidate having engaged in it.
2. The relevancy of the crime to your company’s open position
Assuming no violence toward others is involved, ponder whether the candidate’s criminal activity bears any relationship to what their role and responsibilities would be at your company. What’s the likelihood that they could jeopardize your company and team members?
Perhaps a candidate has a driving under the influence (DUI) conviction from six years ago. If they’re applying to be an administrative assistant, a previous DUI likely won’t impact how they do their job. But if they’re applying for a position in which they’d be responsible for operating a company vehicle, further investigation would be warranted.
Similarly, if you’re hiring for an accountant and a job candidate was convicted of embezzlement, you may want to reconsider.
3. Amount of time since the conviction
Criminal records can haunt job candidates for years, long after they’ve fulfilled their sentence.
Convictions that happened many years ago probably don’t accurately represent who the candidate is today – especially if they’ve had no further run-ins with law enforcement since then. If someone was convicted of a crime 15 years ago and has incurred no offenses in that time, do they really pose a threat?
4. Age of the job candidate when they committed the offense
Someone committing a crime at 40 years old or 60 years old is a lot different than someone committing a crime at 16 years old. Teenagers and young adults, in particular, can engage in reckless behavior and don’t always think through the consequences of their actions.
Should someone be punished for the rest of their life for a mistake they made when they were younger and more immature? Does that behavior represent who they are as a fully developed adult, years or even decades later?
5. Candidate’s explanation for what happened
If a candidate has the skills and qualifications you’re looking for, but a background check uncovers a criminal history, give them a chance to respond or dispute the allegations. In alignment with EEOC recommendations, they should have the opportunity to tell their side of the story within a defined timeframe, such as one week. Let them know that you’re using this information, along with any documentation or additional context they may provide, to make a hiring decision. If you have any specific follow-up questions, ask them.
Often, they may provide information that can allay your concerns. Or, their response can substantiate your misgivings and help you move on to another candidate.
Additional tips for a smooth, discrimination-free hiring process
1. Address hiring someone with a criminal record in your company’s hiring policy
To avoid any ambiguity or charges of discrimination, your company should have a formal policy about hiring someone with a criminal record. Within your larger hiring policy, define:
- How your company evaluates job candidates with a criminal history
- The types of identification your company requires to confirm identity and conduct background checks
- The criminal background and vetting process, as well as the job candidate’s rights throughout
- How many years into each candidate’s past your company will search for a criminal background (on average, this figure ranges from three to seven years)
- Your company’s commitment to preventing discrimination and harassment
Be consistent in applying the policy to all job candidates.
2. Separate the recruiting process and the criminal background check process
So far, we’ve focused on why employers may hesitate to hire someone with a criminal record. Even if an organization does move forward with such a candidate, it can still create awkwardness or tension in the workplace. For example:
- A manager who becomes aware of the fact that their subordinate has been convicted of a crime can start the relationship off on the wrong foot and create strain over time.
- In turn, the new hire with a criminal history may sense that their manager is watching them extra closely or treating them differently – more suspiciously or with less leniency than their peers, perhaps.
- Ultimately, the new hire may feel that their privacy was violated and become resentful.
The above scenario is why many companies have started separating the recruiting and criminal background checking functions.
- No questions will be asked about a candidate’s criminal background in a job interview.
- A company’s management team will never even know about this aspect of a job candidate’s history.
- Once the parties responsible for criminal background checks have completed their investigatory and vetting process, they should simply give a “thumbs up” or “thumbs down” to the recruiting team and hiring manager.
3. Engage a professional employer organization (PEO) or HR/recruiting professional
Going a step beyond the separation of recruiting and criminal background processes, many companies have found it helpful to completely outsource the hiring process to a PEO or a human resources (HR) and recruiting professional, including more delicate tasks such as running criminal background checks. This further prevents managers from wading into information that could damage relationships with employees later on. In some cases, it can even enhance the quality and thoroughness of candidate vetting.
Summing it all up
Understandably, hiring someone with a criminal record can make employers nervous for several reasons. However, out of an increasing sense of fairness and sensitivity to discrimination, there’s a growing movement – backed up by laws in some states and localities – to evaluate job candidates based on their skills and qualifications first, and then run background checks and evaluate criminal history later in the hiring process. After all, a criminal conviction is just one aspect of a candidate that may not warrant automatic disqualification.
In deciding whether to pursue a job candidate and overlook a criminal past, employers should also consider other factors:
- The nature and relevancy of the crime
- The candidate’s age when the crime was committed and how much time has passed
- The candidate’s explanation of the crime
And to prevent discrimination and any ambiguities in the hiring process, employers should implement certain best practices:
- Establish a hiring policy that addresses hiring someone with a criminal record
- Separating the recruiting and criminal background processes
- Outsourcing the criminal background process
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