By Denise Kay, Esq., SPHR
The EEOC and various state agencies are regularly posting guidance to employers on why hiring bans on candidates with criminal histories is against public policy and yet these headlines appear all too frequently: “Shooting Puts Focus on Hiring” or “WDBJ Shooter’s History Sheds Light on Workplace Threats.” What is an employer to do?
A recently published guide for employers on interviewing and hiring applicants with a criminal record identified the following reasons why a hiring ban on those with criminal records is wrong:
- Employing people with a criminal background has a positive impact on society and public safety;
- Employers who use hiring bans lose out on many strong candidates; and
- Hiring bans, unless justified, may violate the Civil Rights Act of 1964.1
Nonetheless, it is uncomfortable, at best, for employers to open their doors to past criminals or those with a potential for bad behavior. This article explores current guidance and accepted human resources practices in managing criminal activity considerations, behavior inconsistent with business code and potential violence affecting the workplace.
Evaluating Criminal Activity in Employment Decisions
As disciplined employers know, the use of criminal background checks and credit histories is under scrutiny due to the potential discriminatory impact those activities may have on an applicant.2 Diligent employers must weigh the criminal conduct against the job duties and safety of its business. Human Resource professionals regularly utilize government guidance, such as that from the EEOC, in determining how to use criminal background checks in hiring decisions. The EEOC’s guidance on criminal background checks lists eight factors for an employer to consider when making the individualized assessment:
- The facts and circumstances surrounding the offense or conduct.
- The number of offenses for which the individual was convicted.
- The age at the time of conviction and/or release from prison.
- Evidence that the individual performed the same type of work post-conviction with the same or a different employer with no known incidents of criminal conduct.
- The length and consistency of employment history before and after the offense or conduct.
- Rehabilitation efforts (e.g., education/training).
- Employment or character references and any other information regarding fitness for the particular position.
- Whether the person is bonded under a federal, state or local bonding program.3
Therefore, it behooves the employer to individually weigh the criminal history against the job duties.4
Colorado Society for Human Resource Management’s guidance is further simplified, stating that in the event a job applicant has a criminal history and there is no “statutory, licensing, or regulatory justification for keeping the applicant from the labor pool”, the employer should conduct a two-step case-by-case assessment:
- Consider the nature of the crime, the time elapsed and the nature of the job; and
- Individually assess the applicant in order to ensure the applicant was not mistakenly screened out due to incomplete or inaccurate information.
Nonetheless, these processes stress the importance of an individualized assessment. Importantly, the consideration of arrest records in employment decisions can be considered in violation of federal and state law as having a “chilling effect” on minority candidates.
Conducting Proper Background Checks
Diligent employers will thoroughly screen applicants and continue to monitor current employee conduct through background checks and references. The Society of Human Resource Management references the following steps for conducting effective background checks:5
Step 1: Review and consider federal laws, such as Title VII of the Civil Rights Act and the Fair Credit Reporting Act, in determining lawful and relevant background information gathering and data use.
Step 2: Review and consider State and local laws. Certain states have “ban-the-box” laws, which may limit an employer’s ability to ask criminal history information on an employment application or may require an employer to wait until a conditional offer of employment is made before conducting a formal criminal background investigation. Further, some states may also restrict the use of arrests and even convictions in making employment decisions. The employer must know the laws of the locations for which they are hiring.
Step 3: Identify the Background Check provider/vendor. Consumer reporting agencies are available to conduct 3rd party background inquiries. An employer should evaluate the depth and breadth of the inquiry to be done and ensure that any vendor is providing the appropriate scope within the budget. For example, conducting a single County/State search for criminal history on an applicant who is known to have lived in multiple states is likely insufficient and could create a liability for that employer.
Step 4: Create policies and update employer applications. Ensure that the employment application documents and recordkeeping are in conformance with state and local laws regarding what can and can’t be considered. Outline policies and protocols with respect to the laws on this issue.
Step 5: Educate. Educate all those in a position to evaluate, interview, select, and promote staff. Ensure that those involved in hiring and selection know what can and can’t be asked, what can and can’t be considered and how to evaluate “red flags” such as gaps in resumes, home addresses, etc., and how to consider that information in formulating decisions.
Step 6: Obtain proper consent to conduct background checks. When the time is right, via selection or conditional offer, be sure to obtain the appropriate signed releases to conduct official criminal background checks. If the employer is in the practice of re-evaluating employees before promotion or movement, then ensure that a blanket consent is on file or obtain a renewed consent before a new criminal background check is conducted.
Step 7: Conduct the Criminal Background Check. While these might take time, ensure full completion and evaluation of the background investigations. Topics might include: court documents, sex offender registries, public state and federal prison records, and other government agency reporting systems.
Step 8: Follow through! Do the check and then individually evaluate the findings. If a candidate is eliminated due to negative information in the background check, then follow proper FCRA protocol in notifying that candidate.
Managing Behavior Inconsistent with Policy and Potential Violence Affecting the Workplace
The next challenge facing employers is monitoring current employees - especially behavior that is inconsistent with company policy or the law. Should an employer monitor existing employees’ behavior? Arguably, yes, but monitoring is not easy. Some employers have policies that require employees to notify the employer if they are convicted of a crime, including the loss of driving privileges, if that is a requirement of the job. However, employees do not necessarily disclose that information voluntarily and employers may find employees driving without a license, working while awaiting criminal trial or hearing, or working after a criminal plea or disposition without notifying the employer.
Employers could and should conduct a regular review of employee records, especially if a valid driver’s license is a requirement of the position. Further, employers should consider doing periodic background checks on existing employees to ensure that their work eligibility and criminal history have not changed.
If the employer becomes aware of an employee’s misconduct, it should react promptly to investigate the concerns and make disciplinary decisions. Employers do face the risk of a negligent hiring or retention claim if they were to employ an individual who causes harm within, or possibly outside, the scope of employment. Employers must take the proper precautions to avoid risk of harm to the workplace and the public based on behavior of an employee that they could or should have known had a propensity for violence. For example, permitting a registered sex offender to serve as a school teacher or hiring an ex-felon with an embezzlement conviction to manage business funds are examples where an employee’s background creates serious liability for the employer.
A criminal past does not necessarily justify a non-employed future. Societal history indicates that meaningful employment is one of the primary predictors of whether a person leaving the criminal justice system will successfully reintegrate into society. According to Bob Mook of the Colorado Center on Law & Policy, recidivism rates are high for formerly incarcerated individuals because 60 percent remain unemployed within one year of release. Those who find jobs take home 40 percent less income than those not incarcerated and only one in four previously incarcerated individuals will ever rise above the bottom 20 percent of income earners.6 These statistics contribute to a cycle of homelessness, poverty and crime. National efforts are underway to remedy these problems including a federal income tax credit, a Work Opportunity Tax Credit, for employers who hire those released from incarceration within a year; a federal bonding program that insures employers for theft, forgery, larceny, or embezzlement from at-risk individuals; record sealing or expungement; provisional pardons; and the ban the box efforts discussed earlier.7
Employers cannot be careful enough in maintaining a safe and secure work environment, yet they must balance the public interest in gainful employment for those who qualify. There is no one-step, full-proof way to accomplish these goals, but diligence and careful individual assessments in any hiring or continued employment decisions are critical challenges that employers must address.