What Employers Must Know About Hiring Employees With a Criminal History
How to Determine Whether to Hire a Convicted Felon
Hiring a convicted felon isn't what most businesses set out to do. In fact, most companies would prefer to hire people who will be soon nominated for sainthood, which leaves candidates with a criminal record out. Employers need to keep in mind, though, that many saints have checkered pasts and so may some of your best employees. Here's what you need to know about hiring employees with a criminal history.
What Is Ban the Box?
Most job applications have a box that applicants check off to say whether or not they have any felony or misdemeanor convictions. But, 35 states and 150 cities have passed “ban-the-box” laws. Some additional states have “fair chance” legislation, which means that you can't ask the applicant about convictions on a job application.
Individual state laws vary, so double check your state or other governmental jurisdiction's laws before you ask a person to fill out an application. As a general rule, ban the box means that you can't ask about any convictions until you get to the job offer stage of the selection process.
The Purpose of Ban-the-Box Laws
What's the purpose behind these laws? The state has a vested interest in getting people with a criminal history working — having a job reduces the chance of recidivism. If you want to lower crime, you want people working instead of returning to their bad ways.
But the other reason for ban-the-box laws is to stop discrimination against Black men. However, research has shown that this may not be working as desired — since employers can't ask about criminal history, they are less likely to interview Black and Hispanic candidates.
Researchers looked at low-skilled men between the ages of 25 to 34 and determined that “in ban-the-box areas... employers are less likely to interview young, low-skilled Black men because those groups are more likely to include ex-offenders. They instead focus on hiring groups made up of men they believe are less likely to have gone to prison.”
So, while the laws may help actual convicts, they can adversely affect low-skilled Black men who have no criminal history.
When Can You Ask About a Person's Criminal History?
In all states, you can ask about felony convictions before you actually hire an employee. The ban-the-box legislation just prevents you from asking about criminal history before you're ready to make an offer. When you're ready to make an offer you can do a background check which involves asking about any convictions.
Can You Reject an Applicant Because of a Criminal History?
The answer to this question is sometimes. Some convictions prevent you from having certain types of jobs altogether. For instance, if you run a daycare, you absolutely can and must reject convicted child sexual abusers. That's an easy decision. In other areas, the decision is not so cut and dried.
Rejecting people based on their criminal history may violate the Civil Rights Act of 1964's Title VII. The Equal Employment Opportunity Commission says that there are two key points when considering how to treat convicted job candidates. They say:
- Title VII prohibits employers from treating people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion).
- Title VII prohibits employers from using policies or practices that screen individuals based on criminal history information if they significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND they do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.
Legislation that is known as "ban-the-box" is an attempt to comply with the first part of this (although, it's not working), but what about the second part? First, you can't assume an arrest means a person committed a crime that would disqualify the person from the job.
If your candidate has a conviction, you can consider that they committed the crime of which they were convicted. If there is simply an arrest, you can use that to start an inquiry into whether or not the person should be disqualified.
How Do You Determine Whether to Hire a Candidate With a Criminal History?
But, how do you determine if the convicted person is “likely to be a responsible, reliable, or safe employee”? That's going to vary based on state laws, but here are some general guidelines.
- Treat people of different races and genders the same. If you go ahead and hire a white man with a drug conviction because it was “just a youthful indiscretion” and then reject a Black man with a similar conviction you're violating the law.
- How long has it been since the conviction? If the job candidate has a conviction for shoplifting from six months ago, you can make a strong argument that this is not a trustworthy individual. If that conviction occurred 20 years ago, however, and no-repeat convictions have occurred — not so much.
- How does the conviction relate to the job? You can reject a person who embezzled from a previous employer as your company's comptroller, but probably not for a job as a landscaper with no access to funds.
- Did you give the candidate a chance to explain himself? If a candidate has a conviction that you say disqualifies him for the position, the EEOC requires you to give the person a chance to "demonstrate that the exclusion should not be applied due to his particular circumstances." This means that you'll have to sit down and listen to what the candidate has to say and perhaps collect some additional information.
Always Consult With Your Attorney About Hiring Employees With a Criminal History
If you wish to reject a job candidate based on a conviction, before you do so, please consult with your employment law attorney. Because state and even local laws can vary considerably, you can't make generalized judgments on what you think is best for your business. You need to ensure that you have followed the law precisely and that you aren't violating Title VII in any way.
Many companies skip consulting with their attorneys because that discussion costs money. But, it's considerably cheaper to pay for an initial consultation than to have to pay for the resulting lawsuit. Remember, even lawsuits that you win are incredibly expensive to litigate.
For jobs with state licensing, use the licensing procedures as your guidelines. If the licensing agency allows the person to have a license with that particular conviction, you should most likely (consult with your attorney) not consider rejecting the candidate because of that conviction either.
When trying to decide how you want to shape your policy regarding convicted felons, consider the true nature of your business. Does your business require actual saints or are normal humans enough?
The information contained in this article is not tax or legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. For current tax or legal advice, please consult with an accountant or an attorney.