Criminal records are keeping millions of people out of the workforce but new policies are closing the divide.
By Marta Chmielowicz
77 million. According to the Bureau of Justice Statistics, that’s the number of American adults who have a criminal record—one in three.
While this population group represents a huge pool of prospective employees, having a criminal record can make it difficult to find work. As defined by the FBI, a criminal record includes a history of all arrests and criminal charges, even if they did not lead to a conviction. In some cases, this may include misdemeanors, juvenile offenses, and traffic offenses such as speeding and driving under the influence.
To remain on top in today’s competitive business climate, organizations need to ensure their hiring practices are fair and non-discriminatory. “Unemployment is at one of the lowest levels in recent history and the war for talent is on,” says Greg Dubecky, president of Corporate Screening. “Employers that pre-screen candidates based on race and criminal history without considering competencies, potential, and a holistic view of the candidate will ultimately lose the war on talent—potentially causing long-term damage to their organization.”
There are key regulations already in place to reduce this type of discrimination. In particular, the Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin. One of the EEOC’s primary efforts focuses on the use of criminal records in employment decisions.
Ban the Box, also known as fair chance hiring, is an initiative becoming more common as states and local jurisdictions adopt the legislation. The policy, adopted in 33 states and more than 150 cities and counties, removes the conviction history question from job applications and delays background checks until later in the hiring process.
“Ban the Box ensures that previously incarcerated individuals have a fair chance of getting to an interview stage to demonstrate whether he or she is the best candidate for the job,” says Cisive’s Chief Compliance and Data Protection Officer, Vice President, and Corporate Secretary Bruce Berger. “Employers must still take responsibility to ensure that they will only consider convictions that might be relevant to the position to be filled and that evidence of rehabilitation is considered at the time since conviction or release from incarceration.”
Ban the Box policies do present challenges to organizations as they are geographically inconsistent, creating a patchwork of regulations that can be confusing.
“Individual municipal and state rules regarding Ban the Box can vary greatly, creating confusion for employers on how to effectively comply. A more uniform, standardized approach to Ban the Box would assist employers and candidates alike,” explains Matt Jaye, vice president of sales at Corporate Screening.
Creating a consistent company-wide policy about the role of criminal records in hiring decisions is key to avoiding this confusion, says Dubecky—especially for companies that operate across multiple locations. This approach can avoid unintentional violations and ensure fair access to employment.
To ensure fair hiring practices, these five best practices for background screening can help determine whether a criminal record excludes a candidate for a role.
1. Wait until an offer is made. “Most employers initiate background screening after a contingent offer of employment has been made,” says Bob Capwell, chief knowledge officer at Employment Background Investigations Inc. “Waiting until later in the process will help ensure a candidate is not eliminated for consideration based on a criminal past.”
Delaying a criminal history inquiry until an offer has been made can also ensure that organizations remain compliant with state and local laws; limit screening costs; and protect candidates’ personal information and data privacy, Capwell adds.
2. Evaluate the specific position. Organizations need to establish a system of monitoring the real and perceived risks of each candidate’s history by job role.
“Employers need to be able to identify the risks associated with hiring a person for a particular position and then to consider if a previous conviction is related to those risks,” Berger says. “Recruiters need to be educated that the presence of a conviction does not by itself define a candidate. Care must be taken in the evaluation process to determine if a candidate has the right skills, the right experience, and the right attitude for the job to be filled. When those are all taken into account, a prior conviction may not be relevant unless there is statutory bar.”
The EEOC recommends that organizations conduct individual evaluations that take into consideration:
- the nature and gravity of the offense;
- the length of time since the conviction or completion of the sentence; and
- the nature of the job in question
3. Seek evidence of rehabilitation. In addition to considering the length of time since the relevant conviction, Berger recommends that organizations inquire into candidates’ efforts to move beyond the experience and improve their lives.
“The time any conviction should be considered is not time-dependent but rather behavior-dependent. Has there been evidence of rehabilitation: completion of additional education, work experience, stable home life, and absence of further transgression?” he says.
4. Create a culture of inclusivity. According to SHRM’s 2018 Workers with Criminal Records survey, the majority of hiring managers and employees are open to working with people with criminal records. In fact, 55 percent of managers, 51 percent of non-managers, and 47 percent of HR professionals express a willingness and openness to hiring candidates with a criminal history.
Yet the survey results also show that this willingness rarely translates to action. Only 5 percent of managers and 3 percent of HR professionals report active recruitment of this population.
One problem? A lack of internal discussion and understanding about companies’ values, policies, and practices for hiring individuals with criminal records. In fact, 54 percent of HR professionals, 46 percent of managers, and 61 percent of non-managers are unclear about their organization’s approach to this issue.
“If the entire organization embodies a set of clearly defined values from the top—beginning with executive management and down through managers in HR, legal, risk, compliance, and security—policy and procedures need to be written with the intent of hiring the most qualified candidates.” says Dubecky. “If an organization approaches this process with altruism, it is documented, and is approved by executive and senior management, organizations will succeed.”
5. Communicate the policy. Transparency and effective communication with both internal employees and external potential candidates is essential to producing a good result. “Be open and honest about the screening policy incorporated into the hiring process and what will be conducted and when. Provide proper disclosure of the process, receive proper authorization, and provide the candidate with their rights under federal and state law,” Capwell explains.
Just 30 percent of managers say that company perspectives have been communicated to employees by senior leadership and 36 percent say they have been communicated by the HR department, according to SHRM—but with the right manager training and communication practices, organizations can improve this process.