Have you been convicted of a crime?

Screening job applicants to find the most qualified for the job is becoming more difficult. In addition to skills and qualifications, employers are under pressure to also consider safety for their current employees by not introducing a potentially violent person to the work environment. Employers conduct pre employment screenings, which include criminal records, to provide them with the information necessary to make those decisions. However, most employers fall into the trap of making decisions based on the findings of the screening, and not the qualifications or character of the applicant. This type of hiring practice can open the employer to litigation and sanctions from Federal authorities.

Law enforcement strategies of the past twenty years has gone through different variants of zero tolerance policing and stricter enforcement of quality of life crimes. Then there is the ongoing war on drugs. These strategies have increased the chance that employers will encounter an applicant with some sort of criminal record. It is becoming the rarity, rather than the norm, that applicants would have no involvement in the criminal justice system.

A recent study published in the journal Crime and Punishment addressed the number of young people who have some sort of arrest record, other than traffic. The findings were based on an annual Bureau of labor Statistics survey of 7000 young people who answered questions between 1997 and 2008. The authors found that 49% of African American men, 44% of Hispanic men, and 38% of Caucasian men have been arrested by the age of 23. For women the numbers were slightly lower-20% African American, 18% Caucasian, and 18% Hispanic.

Ban the box

The “Ban the Box” movement advocates the removal of the employment application question, “Have you ever been convicted of a crime”. Advocates would rather the applicant have the opportunity for a face-to-face interview before the discussion of criminal records or background checks take place. Ten states currently have statewide “ban the box” laws for public employment applications. Of these ten states, Hawaii, Massachusetts, Minnesota, and Rhode Island have banned the box for private employers as well.

There are currently fifty-six jurisdictions in twenty-two states that have enacted ban the box laws. This number is growing annually, in November 2012 there were forty-six. These jurisdictions in the Mid-Atlantic region have enacted laws: Maryland, Baltimore, Wilmington, DE, Washington, D.C., Philadelphia, Newport News, Norfolk, Portsmouth, Richmond.

Corporations are beginning to catch on also. In October 2013, Minnesota based Target Corporation enacted policy that removes the criminal question from their application.

The Equal Opportunity Employment Commission (EEOC) has endorsed the idea of “banning the box”. The EEOC is clear in its position on employers’ use of criminal background checks for employee hiring and retention, stating, “Using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.” The EEOC specifically addresses the consideration of criminal records in its updated Enforcement Guidance published in 2012. The guidelines suggest that employers consider the nature of the job, the seriousness of the offense, and the length of time since the offense occurred. Also, employers should include an individualized assessment that allows the applicant to speak to the circumstances of the record. The EEOC is specific that criminal records only be used as they pertain to the job being sought and cannot be used against an individual without the consideration of other factors.

Banning is a strong word and does not mean that employers cannot view criminal records during the hiring process. Employers do have to be educated on how the records are used. Realizing the difference between an arrest and conviction and understanding the EEOC guidelines and Fair Credit Reporting Act as they apply to hiring will keep employers from incorrect use of records.  

The evolving school of thought is that criminal records be discussed after the personal interview and review of qualifications. An established hiring process and detailed documentation as to the decisions made all go a long way in supporting the employer’s final assessments.