As employers across the country seek to fill positions in the midst of the Great Resignation, advocates for criminal justice reform are urging employers to consider hiring from the pool of more than 650,000 prisoners who are released from incarceration every year.
More than one-fourth of the estimated five million incarcerated people living in the United States are unemployed — an unemployment rate higher than the total U.S. unemployment rate during any period of time, including the Great Depression. Experts and formerly incarcerated people say the ongoing COVID-19 pandemic has only made it harder for them to find work.
Johnny C. Taylor, Jr., President and Chief Executive Officer of the Society for Human Resources Management, encourages employers to re-examine their hiring processes to make sure they are inclusive and up to date.
“A criminal record should never be viewed as an automatic disqualification for employment,” Taylor says. “It’s time to put an end to the stigma that holds back inclusive hiring and retire outdated employment practices.”
Here’s what you need to know:
When can you ask about a person’s criminal history?
All states allow you to ask about felony convictions before you hire an employee. “Ban the box” laws — found in 37 states and 150 jurisdictions throughout the country — prevent employers from asking applicants about their criminal history before a job offer has been made. However, background checks are allowed after a position has been offered.
Can you reject an applicant for prior convictions?
Sometimes a criminal record may bar someone from employment in certain fields.
For example, employers can use and consider data from sex offender registries to make employment decisions if they are required to do so by law — as is the case with government agencies, human societies, adoption agencies, child care centers, financial institutions, and community care facilities — or if they are using the information to “protect a person at risk,” like in jobs that involve working with children, the elderly, or people who are disabled.
Otherwise, rejecting an applicant for their criminal history may violate Title VII of the Civil Rights Act, which prohibits employers from treating people with similar criminal records differently because of their race, nationality, color, sex, or religion.
Title VII also bans employers from using practices that screen individuals based on criminal history information if:
- They significantly disadvantage people who are protected by Title VII, which includes African Americans and Hispanic individuals; and
- They don’t help the employer decide if the person is likely to be a responsible, reliable, or safe employee.
What about arrest records?
An arrest alone is not proof that a person engaged in criminal conduct, so an individual’s arrest record can’t be used by an employer to take “negative employment action,” which includes not hiring, firing, or suspending an applicant or employee. However, an arrest may trigger an inquiry into whether the details of the arrest justify negative action.
What are some best practices to follow?
The Equal Employment Opportunity Commission (EEOC) outlines several best practices for employers who are considering using criminal record information to make employment decisions.
In general, the EEOC recommends employers eliminate policies or practices that exclude people from employment based on their criminal record. Hiring managers and anyone else involved in the hiring process should be trained to understand Title VII and its prohibitions on employment discrimination.
Employers should work alongside legal consultants to develop clear, and “narrowly tailored” written policies and procedures for screening applicants and employees for criminal conduct.
When developing decision-making procedures for hiring people who have been convicted of a crime, employers should:
- Identify essential job requirements and the circumstances under which the job is performed.
- Determine specific offenses that may demonstrate unfitness for performing such jobs.
- Determine the duration of exclusions for criminal conduct based on available evidence.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered when crafting the policy.
When asking questions about an applicant’s criminal record, the EEOC encourages employers to limit inquiries only to records that are related to the job or position in question.
All information about applicant and employee criminal records must be stored safely and confidentially and only used for the purpose it was intended.
ABOUT THE AUTHOR
Lia Tabackman is a freelance journalist, copywriter, and social media strategist based in Richmond, Virginia. Her writing has appeared in the Washington Post, CBS 6 News, the Los Angeles Times, and Arlington Magazine, among others. She writes weekly nonprofit-specific content for 501c.com.