One in three US adults have been arrested by the age of 23, and the FBI considers 29.5 percent of US adults to have a criminal record. Either statistic points to a significant number of potential applicants that have a criminal record. So does a criminal background mean you shouldn’t hire someone? Are there benefits to doing so?
Benefits for the Company
All 50 states offer insurance bonds to companies that hire from risky populations to lessen the fear of liability associated with hiring those with criminal records. In addition, most companies can qualify for the Work Opportunity Tax Credit for hiring someone with a criminal background.
Studies have shown that those with a record perform just as well, if not better than those without a record. Just because they have a criminal past, does not mean that they lack a particular set of skills that would be useful to your organization. In addition, those with a criminal past are less likely to quit, saving your company money on turnover.
Benefits for the Applicant
Upon prison release, one of the most important steps to rehabilitation is getting a job and developing a normal life. Employment leads to lower risk of committing another crime, rejected applicants are more likely to end up in prison again.
A job allows for a sense of normalcy. It can help restore their self-esteem and confidence, start them on a path to rebuilding their lives, and give them a sense of dignity and pride.
Benefits for Society
Again, individuals who have jobs are less likely to commit crimes. This means a safer community when those who have re-entered society are employed. A proper re-entry into society prevents continued crime, which means reduced cost and less time that tax payers contribute to the justice system. It can also benefit families, so children are less likely to follow in their parents’ footsteps in a life of crime but rather see how they rehabilitated and went to work.
Some employers shy away from hiring anyone with a criminal record out of fear. If an applicant was imprisoned for violence they fear that it might show in the office, and it could. In addition, if the individual has been convicted of a felony they are banned from possessing or using a firearm, which is important to note in some lines of work. Some may not be able to work with children, elderly, or other vulnerable individuals.
The length of imprisonment, may impact the individuals skillset. Although one third of incarcerated citizens have a high school diploma, they may require more training and assistance than the average employee.
It’s important to be aware if anyone in your company has a violent history, otherwise the company could be sued for negligent hiring. 75 percent of human resource officials say that a nonviolent conviction would weigh heavily on their decision while 100 percent say a violent conviction would affect their decision. A study found that there was no difference in the customer service industry for those fired for misconduct, but those in sales positions were 28 percent more likely to get fired for misconduct than those who do not have a record.
When it comes to hiring someone with a criminal record, you might also want to take note of the legalities. Starting from the beginning of the process it is federal law that in order to access an applicant’s criminal record you must provide notice under the Fair Credit Reporting Act.
Many state laws prevent the use of arrest records against an applicant in the hiring decision, unless relevant to the job or a field in which they cannot work. Some states, however, allow employers to refuse to hire anyone with criminal records, not just those convicted but those who were arrested but not convicted as well. It is a good practice to not ask about any records that have been expunged, sealed, or restricted. Candidates will respond that they have not been arrested and in most states you cannot ask regardless. State laws include:
Use the menu below to explore state laws regarding criminal background checks.
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A criminal record cannot prevent a person from getting a business license or an occupational license unless the criminal offense would have a direct relationship with the license in question.
Ban-the-box law began in Jan. 2018. Companies with five or more employees are no longer allowed to ask applicants about their criminal history until later in the process so the applicant is judged on skill rather than a criminal record. This gets rid of the traditional check box of whether or not candidates have been convicted of a felony or not. After a conditional offer of employment is made employers can ask about convictions, however they may not ask about arrests that did not lead to a conviction. Again, if the conviction does not directly impact the applicant’s ability to do the work it may not be reason to revoke the offer. If the conviction was the reason for the revocation it must be specified to the applicant and they have the right to respond with favorable evidence.
In Jan. 2017 ban-the-box law went into effect. Here it has two exceptions; if it’s required by state or federal law or the position requires a security or fidelity bond an employer can ask about criminal records. The application must include a statement that the applicant is not required to disclose any arrests, charges, or convictions that were erased; defines criminal records that can be erased; and states an applicant with erased records will be treated as if they never had one. Employers may not refuse to hire an applicant because of erased records, been pardoned, or received a certificate of rehabilitation.
District of Columbia
DC is trying to encourage employers to hire those with a criminal history by providing legal defense if a third party is harmed by the employee’s conduct.
State and local agencies cannot deny someone a license, permit, or certificate unless it was for a felony or first-degree misdemeanor and is directly related to the person’s career path. Employers have more protections when it comes to negligent hiring. The only way a suit can be held against the employer is if there was information that showed that an employee was unfit for the position.
Employers may obtain criminal records with the applicant’s finger prints or written consent. In Georgia, probation following a first offence is not considered a conviction and employers may not use it in their decision. If the employer does not hire someone based on their criminal record they must disclose to the applicant why.
It is illegal for an employer to discriminate in any way (hiring, firing, compensation) based on an arrest or court record. The employer may only revoke a job offer when a conviction within the past ten years has a rational relationship to the job, unless federal law states otherwise.
Laws allow employers to require candidates for independent contractor work to sign a release allowing them to view their criminal record. Laws also exempt employers from liability of an employee or candidate that has a criminal record.
Employers cannot ask about arrests in the initial application because of ban-the-box law. However, during an interview they cannot ask: about arrests that did not lead to a convictions; first-time offenses for drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbing the peace; and they cannot ask about sealed or expunged records. If an employer conducts more than five criminal background checks in a year they must: notify the applicant, give a copy of the criminal history to the applicant and the company’s policy on their usage of the information, and give the applicant information on the procedures to correct a criminal record.
Ban-the-box law prevents employers from asking, considering, or requiring applicants to disclose criminal history until they have reached an interview or a conditional offer of employment is made. Employers may notify applicants of what specific criminal records could disqualify them from certain positions.
While there are no laws for employers, there can be no discrimination for professional or occupational licensing based on a prior conviction. It may be considered if it is related to the license.
Law limits the records employers can receive, unless the applicant or employee consents.
If an employer wants to ask about a criminal record in must be similar to this phrase: “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?”
Employers may obtain information about convictions and pending arrests to determine if an applicant is qualified. They must give the applicant notice as well as reasonable time to confirm or deny if it is accurate with a realistic amount of time.
Employers with 10+ employees cannot use a criminal conviction as a reason to not hire someone unless there is reasonable proof that they would provide risk to property, coworkers, or the public. If an employer is using an applicant’s conviction in their decision they must also look at: any state policies encouraging the hiring of those who have been convicted; duties and responsibilities related to the job and if the conviction would impact their ability to do the job; time passed since conviction; age when the conviction occurred; seriousness of the offense; information provided by the applicant about their rehabilitation; and any impact that the employer believes the applicant would have on property or the safety of the company and public. If denied a position based on a conviction the applicant can request a written statement with the employers reasoning within 30 days.
State licensing boards before denying based on a criminal conviction they need to consider: the level and seriousness of the crime, when it happened, applicant’s age at the time of the crime, circumstance of the crime, the relationship between the crime and the license they are applying for, any rehab/prison/parole/employment records since the crime occurred, any other criminal offenses since the conviction, and any written documents/ character references.
In order to request a criminal record employers need to inform the applicant, and tell the state police department when and where they were notified. The police department will notify the applicant that the request has been submitted and both the applicant and employer will receive the same information 14 days after the notification of the applicant.
Employers cannot ask applicants on an application, interview, or otherwise if the applicant has been charged or arrested for any crimes. They may ask about convictions but it cannot be a broad/general question on an employment application, disqualifying convictions based on job needs or that would prevent the applicant form holding the job based on state or federal laws, it is not until the first interview that the employer may ask about convictions. Those who have been convicted of a crime can apply for a Certificate of Recovery and Re-Entry through the parole board on year after a misdemeanor conviction or three after a non-violent felony conviction.
In positions that pay less than $75,000 a year convictions and arrests that are more than seven years old cannot be included in a consumer report.
As of July, 2017 ban-the-box laws have been in effect. Employers of all sizes cannot ask about criminal history on the initial application. They may ask during an interview of after a conditional offer is made. Criminal history can be used if federal or state law would disqualify the applicant, or federal or state law would prohibit the employer from hiring someone convicted of certain offenses. The applicant must receive the opportunity to explain any circumstance surrounding the offense.
Employers may only consider arrests that took place within the past ten years, they must consider if the charges are still pending, were dismissed or if a conviction would negatively impact the applicant’s work performance. Employers can only obtain a complete criminal record for the purposes of securing a bond required for employment, if the position has access to information dealing with national security, trade secrets, confidential or proprietary business information, money, or valuable items, or if it is to assist an investigation of a suspected employee misconduct that would constitute a penal offense under federal or state laws.
It is illegal discrimination to make decisions based on an arrest or conviction record when it comes to hiring. However, if the pending arrest or conviction substantially relates to job, applying for certain types of positions, or a position that requires bonding and the record would preclude that they may use the record as a reason.
Federal laws to not prohibit asking about criminal history but EEO laws prohibit against using a criminal record as the sole reason for not hiring someone can be considered discrimination. It could potentially violate Title VII of the Civil Rights Act of 1964. So, if you want to use someone’s criminal record as a reason for not hiring them, it must point to a reason within the job description for why they could not do it. Broad questions have gotten companies like BMW and Dollar General in trouble with the EEOC.
If you are interested in hiring someone with a criminal background many states and municipalities have programs in place for those who were in prison to ease back into the general
population. Through those organizations you may be able to interview and help
Generally, the best candidates will directly answer any questions you may have. They will not try to make excuses for their past. When it comes to rehabilitation most are ready to live a normal life. Look at the time between when they were convicted and the present-how long has it been? Have they grown up? People tend to live and learn.
You may ask yourself if current employees deserve to know, well that’s really up to you. While, the person may have previously been violent a parole board has decided that they’re ready to be released back into the world, so consider letting them enter and be judged on their work, not on their past. Ultimately, however, it is up to you and whatever your company is comfortable with.