Hiring Ex-Offenders and What to do When Your Applicant Has a Criminal Record

Estimated Read Time: 7 Minutes

Hiring in today’s job market can be tough for HR teams. As the unemployment rate drops and businesses create more positions, it can be difficult to source enough applicants for those positions. So when you do come across an applicant you like, it’s best to move quickly and with clear direction – before they get snatched up by someone else.

But what do you do when you learn that your favorite applicant has a criminal record?

The Employment Screening Policy

Before doing anything, you need to take a look at your policy. If you don’t have a policy, check out our ebook on the topic which will walk you through the employment screening best practices and what to include in your screening policy.

Your employment screening policy is important for multiple reasons (some of which we’ll get into later in this post) but the overall theme is consistency. Your policy is your north star and helps your organization ensure consistency throughout your screening process by providing a framework to follow. This policy will help you understand which types of screening are conducted for various position levels and will also help you keep track of the various documentation needed to conduct your background checks.

One of the best tools to help you ensure consistency is known as “The Decision Matrix.” The Decision Matrix consists of a table made of columns and rows – listing offenses down the rows of the matrix and position levels across the columns. This helps you easily maintain consistency by notating which offenses are acceptable for particular positions and which offenses require further review. It’s important when working with a decision matrix to not mark any offenses as automatic exclusions for consideration. This is critical due to EEOC guidance that requires an individualized assessment for each and every instance of an existing criminal record.

Think of it like this: The applicant didn’t fail their criminal background check. Instead, they didn’t meet the criteria of their individualized assessment.

It may sound labored, but the reality is that you shouldn’t have any blanket statements or rules that would prevent someone from passing your background checks. You must look at each candidate individually and assess their criminal history in the context of the position they are applying for.

Understanding the Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) is the federal regulation that governs the use of consumer reports (background checks) for employment purposes. As such, there are various administrative rules within the FCRA that require employers to effectively communicate the status of the background check with the subject of the search.

It’s important that individuals are aware of when their criminal history information is being used to make a hiring decision. The FCRA requires three distinct steps when communicating your intent to run a background check for a particular position.

• Initial Notice
• Disclosure and Authorization (also known as the release)
• Subject Notification

Making the Hiring Decision

As stated earlier, it’s critical that everyone involved in the hiring decision knows and understands what the company policy is. You’ll need everyone on the same page to ensure that the decision making process is consistent with previous hiring decisions of a similar scope. This is easier for teams that make the hiring decision within HR but is much more difficult for a typical team where the decision can be fragmented and made by various hiring managers who may or may not be familiar with the policy.

It’s also equally as important that everyone understands the data that’s being reported in the background check. I briefly mentioned the need for an individualized assessment earlier. This point is made more critical because it requires you to understand the nature and gravity of the offenses that could be contained within a criminal background check. This is even more difficult as you attempt to maintain consistency throughout your organization. You’ll want to avoid the situation where one hiring manager thinks that a particular offense is acceptable while another does not.

Here are some important items to keep in mind as you evaluate the criminal records of your applicants and employees:

• Felony vs Misdemeanor
• Disposition
• Defendant Identification

You’ll also find that applicants will occasionally self-report a criminal history when in fact, they have a clear criminal record. Often times applicants aren’t aware of the nuances of particular record types. There could be a number of reasons why their background check came up “clear” other than a faulty background check.

To understand why that is, we must first look at the reportable types of information on a background check. For employment purposes, you are only allowed to see two different types of criminal case classifications: convictions and pending cases. If the applicant was self-disclosing a criminal record because of an arrest, dismissed case, or acquittal, you cannot use that information in the hiring process and most employment background checks will remove that information all together. Often times, when applicants self-disclose a criminal history and the background check comes back “clear,” it’s due to the fact that the record was too old, expunged, and sometimes was simply an arrest that they thought they needed to disclose.

EEOC Considerations

While the FCRA governs the use of criminal records for employment, the EEOC (Equal Employment Opportunity Commission) ensures a fair and safe work environment. Due to this mission, the EEOC is very clear on what types of information can be used to make a hiring decision as well as how that information can be used. The most obvious example of this is protected classes – you cannot make a hiring decision based upon protected class information:

• Race
• National Origin
• Color
• Sex
• Religion
• Disability
• Genetic Information
• Age (40 or older)

In addition to protected classes, information from any source cannot be used to discriminate in violation of federal laws. For example, you must consider each and every applicant on a case-by-case basis. Each applicant’s situation is unique and blanket policies can prevent certain applicants from getting a fair chance at employment – regardless of criminal history.

Disparate Treatment vs Disparate Impact

Another common theme with EEOC enforcement is the concept of disparate treatment and disparate impact. You’ll want to be careful when basing hiring decisions on criminal histories that may be more common among people of a protected class. When policies like this result in discrimination against a group of people (even though it is indirect) is known as disparate impact and can result in a discrimination claim against you. Disparate treatment results when you actively seek to enforce policies with the intent to adversely impact protected classes.

Applying the same standards for everyone is the best way to avoid a discrimination claim and ensure that your organization is operating within the best practices of the EEOC

Job Relatedness and Consistency with Business Necessity Decision Time

That was a mouthful…

Job Relatedness and Consistency with Business Necessity is a concept that acts as a great barometer for your individualized assessment. Is the offense relevant to the role that’s being sought and will it affect the applicants ability to perform the role? JRCBN can really be summarized with three points:

1. What is the nature and gravity of the offense?
2. How much time has passed since the offense took place and/or the completion of the sentence?
3. What is the nature of the job being sought or held?

Answering these three questions when examining the criminal histories of your candidates will set you on a good path to assessing each candidate individually. These questions will help you to understand the role the applicant is seeking as well as the relevance of the criminal record to the role.

A great example of JRCBN would be a DUI (Driving Under the Influence) conviction for a candidate seeking a role as a forklift driver. The offense is related to the role and could require a further look into the individual assessment depending upon your policy.

Decision Time

Once you’ve gathered all of the available information, conducted your individualized assessment, and come to a decision with your key stake holders, it’s time to formally make the decision. If you decide to deny the applicant employment at this stage, you’ll need to move to the Pre-Adverse Action and Adverse Action steps in your policy, but if you decide that the offenses are acceptable and consistent with your policy’s guidance, you’ll want to continue your candidate’s great experience with your organization and ensure that they succeed throughout the onboarding process.

Also, be sure to keep the screening results and files on record (and separate from their other personnel files as mentioned above). It’s important to keep this information confidential in the event that another employee needs to examine their personnel file. Depending on the nature and gravity of the criminal record, not everyone will react to the information in a similar way – especially given that they were not part of the decision making process.

At the end of the day, everyone has a skill set they can contribute, and if you decide that someone is a good fit for your organization, then you’ll want to ensure that they have every opportunity to succeed.

Closing Thoughts

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