A Sound Employer Policy:

Rejecting the Impulse to Reject Anyone with a Criminal Background.

HR professionals responsible for employer recruitment face an increasingly complex network of laws - many regulating when a candidate can be asked if he/she has a criminal background. With unemployment at an all-time low, employers face the real prospect of having unfilled job vacancies.

Alternatively, employers can revisit their policies regarding employing individuals who have a criminal background. In reality, the risks of hiring someone with a background aren’t much different from those associated with hiring someone who doesn’t have one.

Following the Rules of Engagement

Screening Job Applicants & Employees

Today, an overwhelming majority of employers perform criminal background checks before hiring a new employee and, in some cases, promoting an employee. A 2018 survey conducted by the National Association of Professional Background Screeners (NAPBS) found that 95% of employers conduct some type of background screening – with criminal background checks being the most common screen performed.

Yet as more employers make job offers contingent on “passing” a background check, the regulatory framework for screening applicants and employees – particularly at the state level -- has become exceedingly complicated. The Fair Credit Reporting Act and Title VII of the Civil Rights Act also play critical roles in policing the activity of employers who screen applicants or employees.    

Reading a Criminal History Report

The Devil is in the Details

When I first started looking up criminal case records, I’ll admit that I didn’t always understand what I was reading. As a former employment law attorney, I didn’t have the subject matter knowledge of a county prosecutor or public defender. Nowadays, I rarely get stumped by a judge or court clerk’s shorthand.

My work has sensitized me to the fact that criminal court dispositions vary significantly from one state to the next. Sometimes, I find it necessary to look at the state’s criminal code to avoid guessing at the meaning of another state’s court disposition.

Given that the meaning of a single word can differ from criminal code to criminal code, the likelihood of an HR specialist or an attorney misreading a criminal history report is unavoidable. The potential legal exposure to an employer who misreads a report and/or fails to provide a copy of the criminal history report to the subject can be significant.

Vetting an Applicant who has a Criminal Background

Whenever I read an article where an attorney is schooling employers on having a blanket screening policy of eliminating all candidates from the applicant pool based on a designated list of crimes or crimes occurring within a certain time frame, I cringe.

Inflexible screening guidelines do not allow for any consideration of the story behind the story of why someone got arrested, charged, or convicted of a crime. Where roughly 96% of criminal defendants plead guilty in the U.S., innocence is not a reliable defense to criminal charges.

For those who have never set foot in a criminal courtroom, the idea of pleading guilty to a crime you didn’t commit seems implausible and yet it happens every day in courtrooms across America. People plead guilty to get out of jail (can’t afford to post bond), in exchange for receiving a lighter sentence, or out of fear of letting a jury decide their fate. Even where the charges are serious, innocent people plead guilty.

In 2015, the National Registry of Exonerations found that of the 1,702 people exonerated, 15% pled guilty. The crimes exonerees most frequently pled guilty to include: crimes requiring registration as a sex offender, felony drug offenses, and manslaughter.

Employers who give job applicants an opportunity to explain their criminal backgrounds are less likely to withdraw their job offers. And, the most important thing to keep in mind: The candidate was selected as the best person for the job following a rigorous vetting process.

State Legal Guidelines

Ban-the-Box Laws

Prior to 2010, only three states had “ban-the-box” laws. These laws dictate when an employer can ask a job applicant if he or she has a criminal background. Today, 31 states have adopted statewide “ban-the-box” provisions. Some laws only cover public employers, while others cover both public and private employers.

In addition to these statewide laws, numerous cities have enacted their own ban-the-box rules. And because ban-the-box laws vary from state to state, companies that operate in multiple states should be mindful that there is no one-size-fits-all “ban-the-box” law or local ordinance.

Fair Employment Laws

Nearly all states have enacted legislation modeled after Title VII of the Civil Rights Act. In recent years, state legislatures have amended their fair employment laws and enacted other laws to level the playing field so people who have a criminal background can find employment. These laws run the gamut from:

• Authorizing expungement or sealing of certain criminal records (removing the information from publicly available databases) and further prohibiting employers from inquiring about expunged or sealed records.
• Barring employers from asking about juvenile or arrest records, placing time limits on how far back in time an employer can question someone about their or her criminal background.
• Providing tax credits to employers who hire someone with a criminal background.
• Limiting an employer’s liability in the event it hires someone with a criminal background and that person later commits a crime on the job.

Federal Legal Guidelines

Discrimination Claims Based on Disparate Impact Under Title VII of the Civil Rights Act

Ever since April 2012, when the U.S. Equal Employment Opportunity Commission (EEOC) issued its 52-page Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, employers have been put on notice that the EEOC does not condone hiring policies that exclude a significant portion of the minority population because of an arrest or conviction record.

Since the guidance was released, the EEOC has filed several lawsuits against companies it believes use applicant screening tools that systemically and disproportionately reject people of color due to a criminal background. These companies often fail to conduct any individualized review to determine if the candidate’s criminal background should disqualify him or her.

It is well documented that people of color are arrested and convicted of crimes in numbers that far exceed their representation in the U.S. population. Whether these lopsided numbers reflect racial bias -- conscious or unconscious – they cannot be ignored in explaining the over-representation of people of color in our jails and prisons.

Fair Credit Reporting Act (FCRA)

The FCRA is responsible for regulating the conduct of consumer reporting agencies (CRA), the businesses that perform background checks and the employers who hire them. In recent years, with growing expansion of background screening, class action lawsuits have proliferated. Noncompliance with the FCRA’s procedural requirements is a common claim cited in these lawsuits.

Common mistakes include:

• Adding extraneous information to the written notice employers are required to provide job applicants and employees before they can be screened;
• Using dated or unreliable on-line database sources to screen job applicants/employees; or
• Failing to provide the subject of the screen with a copy of the background report when it contains negative content (i.e., arrest and/or conviction record information), leading the employer to withdraw a conditional job offer or change its mind about making a job offer.

Failing to provide a copy of the background report to the subject is risky business. The whole point of giving the job applicant/employee a copy of the report serves as a check on the accuracy of the reported information.

One of the known hazards of conducting a background check is that these reports can and do contain inaccurate information, including information belonging to someone else. Even when the source of the information is the county courthouse’s database – usually the most reliable source of criminal case information – it is not free from errors. Sometimes, retrieving the court file is the only way to resolve certain discrepancies when the court’s database contains errors.