Why Applicant Screening Practices Continue to Hinder Employment of People with a Criminal Record
Introduction
In 2018, the Society for Human Resource Management (SHRM) conducted a survey on employer attitudes towards hiring individuals with a criminal record. In its published findings SHRM reported that HR professionals expressed a greater willingness to hire someone with a criminal record: 37% (willing) versus 14% (unwilling). See Workers with Criminal Records (2018) at https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/second-chances.aspx
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’s journal. The article’s findings drew on a survey the authors conducted of employment practices in the Minnesota’s Twin Cities region. S. Lageson, M. Vuolo & C. Uggen, Legal Ambiguity in Managerial Assessments of Criminal Records, 40(1) Law & Social Inquiry 175-204 (2015).
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 (NAPBS) survey found that 86% of employers said they performed background checks to protect their employees and customers. In actuality, there being 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 ten 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. 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_interdisciplinary_literature_synthesis
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 January 2020, the unemployment rate in the U.S. stood at 3.6%, while the real unemployment rate (accounting for underemployed and discouraged workers) stood at 6.9%.
\Against this economic backdrop, it is surprising how many employers still shy away from hiring an applicant with a criminal record even as they struggle to fill vacancies. Given U.S. crime statistics, an unwillingness to hire people with a background may prove unsustainable if the unemployment rate continues to remain at historic lows.
Today, just as many people in the U.S. have a criminal record (arrest or conviction) as have a college diploma. Current crime statistics reflect 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 EEOC settled a Chicago lawsuit initiated in 2013 against Dollar General. 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 non-conviction (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 (HRA) since 1980.
However, this longstanding prohibition has not stopped Illinois employers from obtaining and using arrest record information. Why? The short answer is because consumer reporting agencies (CRA) are not barred from reporting this information under the Fair Credit Reporting Act (FCRA), 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 HRA’s definition of an arrest record, in effect, adding further clarification to its meaning. An arrest record is now defined as:
An arrest not leading to a conviction;
a juvenile record; or
criminal history record information ordered expunged, sealed, or impounded under Section 5.2. of the Criminal Identification Act.
775 ILCS 5/1-103(B-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 on the 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. (Emphasis added.)
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 HRA’s revised definition of an arrest record. Therefore, based on this narrow fact pattern, I would agree that an employer would not violate the HRA 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. (Emphasis added.)
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, the mother of a college-age son related how her son lost a prestigious summer internship with a foreign bank. The bank withdrew its offer after learning that when the college student was 16 he’d had been ticketed for underage drinking. 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 FCRA’s Pre-Adverse Notice Requirements
Although recent FCRA litigation against employers has focused on technicalities associated with the language and format of background check disclosure and authorization forms, 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.
Pre-adverse Notice Requirements
It is the employer’s responsibility to provide a copy of the background report to the job applicant, along with a pre-adverse 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 fact 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 SHRM asked what happens to applicants who fail a pre-hire 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: 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, job applicant starts calling and/or e-mailing the employer. None of applicant’s calls or e-mails are returned. Finally, the job applicant stops calling/e-mailing 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 because the FCRA’s system of checks and balances has already broken down.
Criminal Background Checks are Fallible
The most perplexing 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 performed indicated that the applicant had been convicted of a violent felony offense. Upon receiving the news, the applicant was deservedly stunned. He told the bank he’d never been arrested or charged with a crime.
The only clue was an old Chicago criminal case number. After exhausting the least time-consuming search methods, the original court file from storage. The case involved a shooting at a bar. The applicant’s connection to the crime: he was in a patron at a 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 similar circumstances (see accompanying posting about how a background check with erroneous information caused someone to lose their job).
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 SHRM’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 HRA’s constraints and the FCRA’s procedural requirements.