How To Fairly Consider Job Applicants With Criminal Records

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How To Fairly Consider Job Applicants With Criminal Records

by Ina Silvergleid (March 24, 2020)

In 2018, the Society for Human Resource Management conducted a survey on employer attitudes toward hiring individuals with a criminal record. In its published findings the Society for Human Resource Management reported that human resources professionals expressed a greater willingness to hire someone with a criminal record: 37% willing versus 14% unwilling.[1]

Yet the same survey found that only 32% of those polled had a formal policy facilitating such hiring decisions. Previous studies have shown that when a company doesn’t have a formal policy in place, hiring managers are less likely to hire criminal justice-involved candidates due to liability concerns (i.e., negligent hire/supervision claims) that well exceed any actual legal threat.

This phenomenon was highlighted in a 2015 article published in an American Bar Foundation journal. The article’s findings drew on a survey the authors conducted of employment practices in Minnesota’s Twin Cities region.[2]

Concerns about co-worker or customer safety is a common refrain among employers questioned about their willingness to hire someone with a criminal background. A
2018 National Association of Professional Background Screeners survey found that 86% of employers said they performed background checks to protect their employees and customers. In truth, there is little empirical evidence connecting ex-offenders to on-the-job criminal conduct.

Last year a trio of academics — representing the fields of psychology, HR management and business administration — summarized 10 years' worth of literature (2008-2018) on employer hiring practices of people with records.

Despite a lack of research on the nexus between job performance and someone having a criminal background, the authors found that employer perceptions that ex-offenders create a legitimate employment risk go largely unchallenged.[3]

Available workplace violence statistics reflect that employees are more likely to be victimized by a stranger than a co-worker. An employee is at a greater risk of becoming a crime victim outside the workplace than in it by a margin of 16.4 to 5.1.

Filling Job Vacancies in an Era of Low Unemployment

In February, the unemployment rate in the U.S. stood at 3.5%, while the real unemployment rate (accounting for underemployed and discouraged workers) stood at 6.9%.

Since the last official unemployment statistics were reported in March, the COVID-19 virus has sent the U.S. economy into a tailspin, resulting in a significant surge in new unemployment filings.

During the country’s sustained economic growth, it was surprising how many employers still shied away from hiring an applicant with a criminal record, even as they struggled to fill vacancies. In January, the Center on Budget and Policy Priorities reported that for every 100 job openings there were only 85 job seekers.[4] My fear is that the inroads people with records had begun to make when the economy was humming along may be short-lived.

Today, just as many people in the U.S. have a criminal record (arrest or conviction) as have a college diploma. Current crime statistics ref lect that one-third of the adult population (by age 23) has an arrest record and nearly 13% of U.S. adult males have been convicted of a felony. For African American males, these figures increase to 49% and 33%, respectively.

The fact that the criminal justice system has disproportionately engulfed the lives of African American males should concern some employers. Employer hiring practices that eliminate anyone with a criminal background from its applicant pool will have a disparate impact on African American male job seekers.

This past November, the U.S. Equal Employment Opportunity Commission settled a Chicago lawsuit initiated in 2013 against Dollar General Corp. The lawsuit alleged the company’s reliance on criminal history to remove individuals from its applicant pool had a disparate impact on African American job seekers.

To settle the case, Dollar General agreed to pay $6 million, enter into a three-year consent decree, and employ a criminology consultant to develop a more race-neutral policy for evaluating someone’s criminal background if it intended to screen applicants for criminal history.

If employers are genuinely interested in leveling the hiring playing field for criminal justice- involved job applicants, there are several things they can start doing.

Stop Looking at Arrest Record and Local Ordinance Violations

Arrest Records

Illinois is one of a handful of states that prohibits employers from considering nonconviction (arrest) record information when making an employment decision. In fact, it may surprise legal advocates that the bar against considering arrest records has been a feature of the Illinois Human Rights Act since 1980.

However, this long-standing prohibition has not stopped Illinois employers from obtaining and using arrest record information. Why?

The short answer is because consumer reporting agencies are not barred from reporting this information under the Fair Credit Reporting Act, provided the records aren’t more than seven years old and the job does not pay in excess of $75,000.

Last year, the Illinois General Assembly quietly amended the Human Rights Act’s definition of an "arrest record," in effect, adding further clarification to its meaning. An arrest record is now defined as:

(1) An arrest not leading to a conviction
(2) a juvenile record; or
(3) criminal history record information ordered expunged, sealed, or impounded under Section 5.2. of the Criminal Identification Act.[5]

In the past, management counsel advised clients that they were free to conduct their own investigation into whether a job applicant or employee had engaged in criminal misconduct.

In support of this position, some relied on language contained in the EEOC’s much-maligned 2012 enforcement guidance titled "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII." The pertinent language can be found in the section discussing the limitations of using arrest records to make an employment decision:

Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.

The example then given to illustrate this point depicts an employee facing a pending criminal complaint.

A record of a pending arrest does not fall within the Human Rights Act's revised definition of an arrest record. Therefore, based on this narrow fact pattern, I would agree that an employer would not violate the Human Rights Act if it sought additional information about the underlying circumstances of a pending arrest.

Based on the revised definition, I do not believe Section 5/2-103(B) can be read as authorizing employers to go looking for other information about a closed criminal case absent a conviction. Section 5/2-103(B) provides:

The prohibition against the use of an arrest record, as defined under paragraph (1) of subsection (B-5) of Section 1-103 ... shall not be construed to prohibit an employer ... from obtaining or using other information which indicates that a person actually engaged in the conduct for which he or she was arrested.

In short, Illinois employers should instruct background check vendors to stop collecting arrest record information.

Local Ordinance Violations

Local ordinance or city code safety violations are civil transgressions, notwithstanding the fact they overlap with low-level misdemeanor offenses in the Illinois Criminal Code.

Juveniles (under age 18) are more likely than adults to be ticketed under a city’s local ordinance. By doing so, the juvenile avoids getting arrested, charged and referred to juvenile court. Nevertheless, a public record of an ordinance violation can still have collateral consequences for the subject.

Several years ago at an expungement help desk where I volunteer I met the mother of a college-age son who explained that her son lost a prestigious summer internship with a foreign bank. The bank withdrew its offer after learning that the college student had been ticketed for underage drinking when he was 16. Apparently, it made no difference to the bank that the charge was later dropped.

Some municipalities adjudicate ordinance violations in-house, while others refer these matters to state court. When these tickets are adjudicated in-house there is no public record to be found. Matters referred to state court generate a public record.

Thus, the fact that ordinance violations are civil in nature, along with the lack of uniformity in how these violations are documented, should be reason enough to convince employers that using this information is ill-advised.

Compliance With the FCRA’s Preadverse Notice Requirements

Although recent FCRA litigation against employers has focused on technicalities associated with the language and f ormat of background check disclosure and authorization f orms, these are not the only requirements employers must comply with if they want to perform a lawful criminal background check.

Recent surveys reflect that up to 90% of employers conduct background checks and, of that number, approximately three-quarters delay screening until after they’ve made a job offer.

Today, most job offers are conditioned on passing a background check. Employers rarely explain what it means to pass a background check. Reading between the lines, it is safe to say that "passing" means no criminal background.

Once an employer decides to perform a background check, the FCRA sets forth what written information must be provided to the subject of the review. For purposes of this discussion, the focus will be employers’ notice requirements once a background report is returned with criminal history information.

Preadverse Notice Requirements

It is the employer’s responsibility to provide a copy of the background report to the job applicant, along with a preadverse action notice, if it is the employer’s intention to withdraw a conditional job offer. This must be done regardless of the extent to which the employer’s decision rests on the f act that the applicant has a criminal background. Employer surveys reflect that a significant number of employers do not comply with these requirements.

In its 2018 survey, when the Society for Human Resource Management asked what happens to applicants who fail a prehire screening (due to a criminal background), 54% of the HR professionals and 58% of managers said the individual was removed from the applicant pool. This response (eliminating the applicant) is consistent with anecdotal evidence from the field.

A typical scenario goes like this: A job applicant receives a conditional job offer and undergoes a background check. The employer, upon learning that applicant has a criminal record, suddenly cuts off contact with the job candidate.

Hearing nothing from the employer, the job applicant starts calling and/or emailing the employer. None of the applicant’s calls or emails are returned. Finally, the job applicant stops calling/emailing out of frustration, left to speculate whether their background (assuming the person has one) had something to do with the employer’s abrupt decision to withdraw the offer of employment.

Many disaffected job applicants are unaware of employers’ responsibilities under the FCRA. Most don’t realize they have a right to review their background report, which has been known to include inaccurate information or information belonging to someone else.

There’s no way to quantify how often erroneous information is collected. Why? To date, no industry-wide study has been undertaken to determine the accuracy of credit reporting agency criminal background checks. Currently, the only way we learn of inaccurate reports is when someone files a private lawsuit or complaint with a governmental agency such as the Consumer Financial Protection Bureau.[6]

Criminal Background Checks are Fallible

The most perplexing anecdotal example of what can go wrong with a background check involved a job applicant who’d been offered a job with a banking institution. The background check perf ormed indicated that the applicant had been convicted of a violent f elony of f ense.

Upon receiving the news, the applicant was deservedly stunned. He told the bank he’d never been arrested or charged with a crime.

With the assistance of the James B. Moran Center for Youth Advocacy, a legal aid organization named after the Chicago federal judge, another attorney and I commenced an investigation into what connection, if any, the criminal case had with the job applicant. The only clue was an old Chicago criminal case number.

After exhausting the least time-consuming search methods, I ordered the original court file from storage. The case involved a shooting at a bar. The applicant’s connection to the crime: he was a patron at the bar when shots were fired. As a witness to the crime, the job applicant had been subpoenaed to testify to what he’d seen.

Although it took a few months for the investigation to unearth the applicant’s connection to the criminal case, by some miracle the bank patiently stood by. The applicant was hired. Happy endings like this rarely occur under such circumstances.

Granted, many employers don’t have the luxury of waiting months for a job applicant to gather the necessary documentation to clear their name and reputation. Yet, a reasonable amount of time should be given to applicants who adamantly protest the contents of a consumer report.

Conducting Case-by-Case Reviews

But that’s just one side of the coin. The other side of the coin is that many employers don’t give job applicants an opportunity to explain their criminal background or seek more information about the applicant’s background in order to determine whether it necessitates withdrawing a conditional job offer.

According to the Society for Human Resource Management’s 2018 survey, 74% of HR professionals and 53% of managers stated that applicants were given an opportunity to explain. Yet, as noted earlier, the same survey found that more than 50% of employers eliminated these individuals from the applicant pool once they learned of the criminal background.

A few years back a former client was offered a customer call center position with a Fortune 500 company. Following the background check, the company sent the client a letter asking her to provide additional information about her criminal cases. The letter included a list of questions for her to answer. I helped the client draft a response to the letter and she was eventually hired.

Even if the company had decided against hiring the client, I still would have given the company kudos for giving my client an opportunity to provide a more robust explanation for her criminal background.

If I’ve learned anything from my years representing people with criminal backgrounds, there’s always a story behind the story. Anyone who thinks all they need to know before passing judgment on someone’s character and fitness is what they were charged with couldn’t be more misguided.

Did you know, for example, you can be charged as an accessory to the crime of armed robbery if the perpetrator mentioned to you in passing that he planned to rob a pizza delivery man, even if you assumed he was just kidding?

We need to redouble our efforts to ensure that employers establish written hiring procedures that contain clear guidelines on how to evaluate job candidates who have a criminal background. But these policies, alone, will do little to change current hiring practices if employers fail to abide by the Human Rights Act’s constraints and the FCRA’s procedural requirements.

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Ina R. Silvergleid is the founder of A Bridge Forward LLC, and a former employment law attorney.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See Workers with Criminal Records (2018) at https://www.shrm.org/hr-today/trends- and-forecasting/research-and-surveys/pages/second-chances.aspx.

[2] S. Lageson, M. Vuolo & C. Uggen, Legal Ambiguity in Managerial Assessments of Criminal Records, 40(1) Law & Social Inquiry 175-204 (2015).

[3] J. Griffith, C. Rade, & K. Anazodo, Criminal history and employment: an interdisciplinary literature synthesis, 38(5) Equality, Diversity and Inclusion: An International Journal 505- 528
(2019). https://www.academia.edu/40885801/Criminal_history_and_employment_an_inter disciplinary_literature_synthesis.

[4] https://www.cbpp.org/research/economy/chart-book-tracking-the-post-great-recession- economy.

[5] 775 ILCS 5/1-103(B-5).

[6] Ariel Nelson, Broken Records Redux, How Errors by Background Check Companies Continue to Harm Consumers Seeking Jobs & Housing, at 15-17 (National Consumer Law Center, Dec. 2019). https://www.nclc.org/images/pdf/criminal-justice/report-broken- records-redux.pdf .