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How to Fairly Hire Applicants With Criminal Records

Person A has a problem. She has to hire a specific number of people this year. Many of these jobs are not highly paid, but all of them must be performed well. Finding enough qualified applicants is a challenge.

Person A is not alone. Nationwide, the number of qualified job applicants currently isn’t growing fast enough to keep up with the employers’ needs. The last thing employers need is artificial barriers to hiring qualified applicants.

But that is what they have. Many people in today’s job market have criminal records. Some of these people have committed serious crimes. Others have committed only minor offenses. A few have not committed any crime at all; they were found not guilty of the charge for which they were arrested or are victims of identity theft. The FBI estimates that 50 percent of its criminal records contain errors. No HR professional wants to hire a person with DUI convictions to drive a vehicle or someone convicted of child abuse to work in a school. But disqualifying every applicant with a criminal record for every job is unnecessary.

This is especially true because of profound changes in the criminal-justice system. When I was 17, I punched another young man in an argument in the local pool hall. The security guards promptly “escorted” me to the manager’s office. The manager called my father, who assured the manager that if he would allow my father to handle the situation, I would never enter his establishment for the rest of my life. To this day, I have never returned. If my son were to repeat my foolish mistake, he would unquestionably be arrested for assault and battery, and the conviction would follow him for the rest of his life. Literally millions of people in the United States today have criminal records because they were caught smoking marijuana at a rock concert 10 years ago, accidentally bounced a check, or got into a shoving match with another driver after a fender bender. Many of these people can be excellent employees.

Consequences

Refusing to hire anyone with a record is not only unnecessary, it takes a huge bite out of the applicant pool. According to the U.S. Department of Justice, 30 percent of America’s adult population has a criminal record. Among people of working age, about 40 percent have criminal records. For some demographic groups, the rate is even higher. More than 50 percent of Black males have a criminal record. As the United States’ demographics continue to change, the problem presented by using criminal records as an employment screen will continue to grow.

How can an employer find enough candidates to fill all its openings if it excludes people with criminal records from the applicant pool? The answer is simple: It can’t. Employers need to consider all applicants and exclude people with criminal records only when it is a legitimate disqualification.

Dumping this responsibility on HR professionals isn’t fair and won’t work. HR professionals aren’t criminologists; they aren’t in a position to determine whether an applicant with a particular record is a risk to the employer. And, even if they could, HR professionals are in a trap when it comes to applicants with records. If they hire an applicant with a record and they do a good job, HR gets no credit; it’s their job to hire good employees. But if an applicant with a record is hired and commits a new offense, the Monday-morning quarterbacking will permanently damage the career of the HR person who hired them. Empirical research confirms that most HR professionals are extremely reluctant to hire applicants with a criminal record, even if the offense is relatively minor and their record is otherwise outstanding.

The Answer

The way out of this dilemma lies in creating and implementing a carefully crafted policy regarding applicants with criminal records. Both stages require expert assistance.

Step one: Create a matrix determining which convictions the company considers relevant. According to Gilbert Casellas, former chair of the Equal Employment Opportunity Commission, “Relevance matrixes provide a creative and practical tool that will make it easier for employers to hire qualified ex-offenders.”

There is no single matrix that can be used across the board; one size does not fit all. The convictions that are relevant depend upon the nature of the job. For a job involving driving, DUI convictions are relevant. So are some non-criminal offenses. (Do you want to hire a driver with no criminal record with multiple speeding tickets?) For jobs involving access to money, theft and other crimes of dishonesty are key. For jobs involving access to vulnerable populations such as children and seniors, the focus should be on violent crimes.

Focusing on the connection between the past offense and the current job is not only logical, it’s legally required. Because of the disparate impact of criminal records on hiring, the EEOC requires such a nexus for the conviction to be a bona fide disqualification.

There is no need to reinvent the wheel. Organizations such as the National Workrights Institute have created template matrixes for most jobs and will work with an employer’s HR and legal teams to tailor the matrixes to the specific needs of the company.

Step two: Don’t find out what you don’t want to know. Have an outside organization apply the relevant matrix to the rap sheets of applicants and report only relevant convictions to the employer.

The best way to ensure that irrelevant prejudicial information isn’t considered in the hiring process is not to collect it. Using a third party also avoids the classic legal problem of having to convince the EEOC or a court that a hiring decision was not based on impermissible factors. Organizations that help employers create relevance matrixes usually provide this service if requested.

It’s Still the Employer’s Decision

Using a relevance matrix does not make the decision for the employer, nor should it. Whether an employee with a theft conviction should be hired for a position of trust depends upon many factors. Did the applicant shoplift a CD or rob a bank? Did they commit the offense six months ago or 20 years ago? What is their employment record since the offense? Is it spotty, or have they been a model long-term employee?

Ultimately, it’s a judgment call. No device can or should make the decision. But using a relevance matrix ensures that the judgment call is made with all the relevant information and without information that is prejudicial.

Conducting criminal-record checks in a more focused and nuanced manner will not eliminate long-term labor shortages, but it will help employers avoid making the problem worse by screening out applicants who would have been good employees.

21 Comments

  • Deborah Thompson

    I agree completely with what you have stated as I have a criminal record. How can people get that across to the job market?

  • FRED GRANT

    My name is Fred Grant…I reside in Gulfport MS….52 years old…A long time ago(27 plus Years), I was arrested on a felony charge in Broward County Florida.It was my first and only offence for which I was put on probation for 18 months and 100 hours community service..since then..I have a spotless work history.The only gaps in my work history is when I moved to Mississippi from Florida, and once when I held a temp position that ended and I had to find a new job.When I first moved to Mississippi, it took a few weeks to secure a job.For reasons beyond my control, my former employer laid off a large percentage of their staff.I was one of them as of 07/05/2011.I was hired there on 08/13/2007…never missed a day.I applied for a job with the local police as a dispatcher.I was denied because of the felony conviction so many years ago…They focused on that conviction instead of my work ethic.I thought the justice system was to rehabilitate…you know…give people a second chance to become productive citizens…but what’s the use if one mistake folows you the rest of your life…this is why so many people return to a life of crime because they never will get a fair shake….someting to think about ha??…Thanks fo listening……..Fred G.

  • I am so pleased to see this article advocating for people who have paid their dues and really need to be reintegrated into society for their own benefit and for ours. I teach in a jail, and I can tell you many of those incarcerated are talented, intelligent human beings whose talents are wasted once they leave the institution. Ostracizing former felons can only bring about more crime and poverty.

    I can also tell you that some people in prison do indeed need to be put away because they can’t function in society and they will continue to hurt people. However, that does not mean (many more of) those in prison should not be given the chance to work and contribute within the prison system. If we were to put even 70% of prisoners to work doing something that benefits society and themselves, we would have a much different nation. There are ways to do this safely, but unfortunately, we have a lock away and throw away mentality.

  • Timothy Brown

    It is sad that a society we live condone certain things but permitt others. What i truly have to say to these people who write and change the laws cannot be said or written for the fear of reprocustions. So i say, sad, sad. Good luck

  • I agree with the article but what is the alternative when slecting people we know certain genders and groups are dissportionately caught up crime and arresst and incarceration. But this trend toward using Arrest history being used in background checks inspite of being not guility or charges not being filed there are certain positions that say you have to reveal that. If you had police contact ever. This is not only unconsititutional it is discriminatory.
    No one wonder the rate of unemployment is so high with certain groups.

  • Bonnie Bazata

    Some good resources for employers willing to hire people with convictions include these:

    Through the Federal Bonding Program (FBP), funded and administered by the U.S. Department of Labor (DOL),
    fidelity insurance bonds are available to indemnify
    employers for loss of money or property sustained through
    the dishonest acts of their employees (i.e., theft, forgery,
    larceny, and embezzlement).

    In fact, employers can save money on their federal income taxes in the form of a tax credit incentive through the Work Opportunity Tax Credit (WOTC) program by hiring ex-felons. For each new ex-felon hired, the credit is 25% of qualified first-year wages for those employed at least 120 hours, or $1,500; and 40% for those employed 400 hours or more, or $2,400.

    You can find lots of good information on the reentry mythbuster website at https://partnerships.workforce3one.org/view/4011123146592069644

  • Brook Henderson

    Thank you so much for publishing this in a public forum. My company, Freely Working, LLC, only uses ex-felons as workers. I believe with all my heart that work is healing for those who have been shut away for long periods of time. Next to sobriety and family, work is an important component of successful reentry.

    Brook Henderson, CEO
    Freely Working, LLC
    Colorado Springs, CO

  • Susan Wurth

    Thank you for this article. I work with young people ages 16 -21 to facilitate their education and workplace skills leading to employment. They all have criminal backgrounds. In addition to that barrier, they must meet poverty level income requirements to participate in this program.
    Some have juvenile charges that may not keep them from being employed but we’re never sure what will show up on a background check that can eliminate them. Those with adult charges (many are not yet eighteen) are often turned away by employers who refuse to consider their convictions, particularly felonies. And, this will be their future.
    So, we have intelligent motivated youth who continue to be rejected for employment and need to work to support themselves and possibly their children. They are completely barred from some professions. The courts, probation and parole officers tell them they must be employed. They are too young to have any distance from their crimes and no chance to gain any experience. So much for rehabilitation. I hope more employers will look at this matrix idea and try it out.

  • Willis Pullen III

    I didn’t go to court in 2005 after being told to be there in 2004, I didn’t remember after almost a year and not getting anything in the mail. Well, I thought my car was stolen, I called the police they ran my License and realized I had a warrant, which I didn’t know about. Well, I get to court and find this out and they called it contempt of court, I was given a 5yr probation sentence was I thought was a bit harsh. I finished it in June of this year but its still on my record. Relating to Child Support case. Also Judge made it 3rd degree Felony……and did 35 days in Jail.

  • I know it’s a tough road ahead for those with prior felony convictions. Unfortunately, there is a job market where companies just don’t want to take the ‘risk’ of giving someone a second chance.

    One thing I would like those in this dilemma to think about. Going into business. Few times have the question came up when bidding for a contract. Downsizing leads to more outsourcing and identifying a niche is emotionally rewarding and financially enriching when done right.

    There is a need for ex-felons to start businesses, grow them to scale and reach back to hire those whom they have something in common.

    Workforce center are good places to visit frequently to seek employment and when you visit one, ask to register for federally-funded workforce training under the Workforce Investment Act. Get free training with support services included. If you don’t ask; they won’t tell. In most cases they are conditioned to think everyone must have a job when many are truly cutout for self-employment.

  • Sounds like most comments and thoughts are around a certain worldview. I have worked with Citizens returning from prisons. The truth is after 7 years the recidivism rate drops dramatically. People make mistakes. People are capable of changing. Limiting the time to 7 years for looking at records will open up opportunity for returning Citizens no matter what the crime. True this adds 7 years to to a sentence after a Citizen returns, but it is better than locking Citizens out of society by denying them employment for life.

  • My son is oresently serving time for his first crime. He is 35, a college grad with 3 children. He unfortunately hit a guy, once, who was harrassing him and his younger brother. The guy fell, and ruptured a disk in his neck and had surgery.He already had back problems. His family has been turned upside down, his children severly effected, and his future unsure. For a person with a record to be able to carry on and be employed, after the sentence is served, is vital to the healing.

  • What are the legal ramifications to the employer, if he fires someone after knowledge of an alleged crime? In other words, the employee was charged with a crime, but it has not been finalized.

    • Lewis Maltby

      Terri:

      This is a tricky problem for employers. If the employer refuses to hire because of an arrest for which the person was not convicted, it may be a violation of civil rights laws. But employers have been found liable for negligent hiring where the applicant had no convictions but the employer had information indicating that the applicant should be disqualified.

      One good step is to look into the case. In an aggravated assault case, is the prosecutor claiming the applicant stabbed someone or took a swing at someone in a heated argument? If it’s the latter, even if the applicant is guilty it may not be a disqualification.

      If the charges are serious and job related, the best thing to do may be to wait until the case is resolved before making the hiring decision.

  • In 1998 I was arrested and charged with CSC 1 degree. The case was dismissed with prejudice before trial. THe judge has sealed the case and ordered expungement of the record. But the State Police refused to erase the arrest and it is still in the FBI files because 8 years later the State passed a law which prohibits CSC charges to be expunged.
    WHAT A MESS THIS HAS MADE FOR ME IN GETTING JOB INTERVIEWS. Any suggestions would be helpful. Thank You

  • My husband has been refused a job more than once based on his background check. He had an incident 13 years ago where he was charged with aggravated assault for a road rage incident but was only convicted of misdemeanor discharge of a firearm (his friend was passenger and fired a weapon into the air to scare off the other driver). My husband has gotten through a few lengthy interview processes and then got dumped after the background check. It really sucks. And the most disturbing part is that the background checks didn’t just show what he was convicted of, it showed all the charges too. That is very unfair. I live in AZ. People should only be able to see what you were convicted of in a court of law, not what you were charged with.

  • Why would an employer risk hiring people with criminal records if the talent pool is large enough? Yes, people make mistakes but that doesn’t mean they shouldn’t be placed in a “risky” category for those evaluating them as potential employee candidates. One of the most challenging things for employers is hiring the right person for a job. Interviews are short periods of time to try to quickly evaluate someone so background checks can tell a better story than an interview can where of course the candidate is only going to tell you about what’s great about them.

    • jorge lopez

      Just read the comments above wouldnt you like to help someone change thier life for the good? I use to hire all kinds of people the worst employees were the ones who had a clean record…they had nothing to be grateful for…yet the ones with some criminal history were always there by my side very thankful that i open the doors for them..put yourself in thier shoes wouldnt you want someone to give you a chance if you commited a mistake in your past?

    • jorge lopez

      Another thing to think about is that 50% of people who commit a crime have a clean record….what does that mean? that 50% of the people you hire cuz they have a clean record eventually will commit a crime.

  • My brother committed a misdemeanor close to 17 years ago. He has been crime free. He is not a sex offender, and the nicest man you could want to meet. Yet when he apply for employment at a co. he was turned down. I believe that after 17 years he should have been considered. He is a good potential employee. Why deny him employment over something that happened close to 17 years back?

  • Youthrights

    What kind of BACKWARD state is Virginia? Is ANYONE there in politics actually thinking? Or just operating off of myopic emotions? Hello, if a 12 year old boy or girl got drunk, or smoked some weed, spit on a cop, joy rode without huring anyone, or punched a classmate over a fit of jealousy during a love triangle, and got in trouble, but later turned their life around, who the heck cares? Is there anyone in Virginia with a brain? Amend your laws to honor the fact there are some crimes committed in youth that, given the person has no other pervasive pattern of this crime, isn’t even worth mentioning. And let’s face it folks, there are plenty in congress who have committed “barrier crimes” that are deeply hidden…so let’s not be hipocrites.

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