How to Fairly Hire Applicants With Criminal Records

Employers need to consider all applicants and exclude people with criminal records only when it is a legitimate disqualification. Here's how to determine what's relevant to your positions.

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.

25 DiversityInc Top 50 Companies Sign Brief in Support of Same-Gender Marriage

They join 354 other businesses/organizations in urging the Supreme Court to strike down the remaining 13 state bans on same-gender marriage.

Same-gender marriage now formally has the backing of much of corporate America.

Read More Show Less

Disney Parks Sued for Disability Discrimination

More than two dozen individual lawsuits allege that Disney's Disability Access Service program violates the Americans With Disabilities Act.

By Albert Lin

Read More Show Less