Hiring someone with a criminal conviction can create challenges for a company that may not know if this puts them at risk. In any hiring decision, context is key to understanding the impact different decisions can have. In order to navigate the nuances of hiring when legal history is involved, businesses should have clear policies and HR guidelines determining when to ignore a criminal conviction...or when it should be a deal breaker.
According to the Society for Human Resource Management, “Only one-third of HR professionals said their company has a formal policy about hiring someone with a criminal record.” Not having a policy means companies may blindly make inconsistent or unwise decisions without understanding the impact--positive or harmful--when considering a candidate with a legal conviction. Companies can weigh three impacts when shaping policies for hiring someone with this background.
Contrary to the stigma, hiring someone with a criminal conviction can be the best personnel decision a company makes. Given the fact that approximately 1 in 3 American adults have a criminal record, the chances are fairly high that an otherwise fully qualified person could have a conviction.
Taking a closer look at the specific candidate and the type of conviction in context of the role can lead to getting people back into the workforce and onto strong teams for companies. Many individuals with a criminal conviction may not even have a record related to the job, or it may only be a minor offense. Basing a hiring decision entirely off of a criminal conviction--without context around the person behind it--is not advisable and could mean a company loses out on a loyal employee.
Businesses that hire people with criminal convictions (depending on context) often find that the decision was a strong one. The Society for Human Resource Management says that “66 percent of managers and 60 percent of HR professionals at companies that have hired people with criminal backgrounds rated the quality of work by those employees as comparable to those without criminal records. And 82 percent of managers and 67 percent of HR professionals think that the value new employees with criminal records bring to the organization is as high as or higher than that of workers without records.”
In fact, the impact of hiring a candidate with a criminal record can be an added asset. An ACLU report found that people with criminal records are less likely to quit (saving the employer significantly on turnover costs), and are no more likely to be fired than someone with a conviction.” According to a study conducted by North Western University, “researchers estimate that hiring ex-offenders could save companies about $1,000 per year per position” due to the lower turnover rate once a hire is made.
When making a second chance hire, global human resource expert Margie Lee-Johnson says, “You’re likely to see more creative problem solving, greater empathy, higher engagement, and unique and valuable viewpoints.”
Global research has long documented that the American legal system is a product of institutionalized racism and impacts BIPOC at far higher rates than white people. This increased and unjust contact with the legal system--especially convictions--can also impact hiring choices, all kinds of team diversity, and, ultimately, company strength. This has sparked more “fair chance hiring” that seeks to overlook certain criminal convictions in an effort to address the disparity and create more authentic, rather than tokenizing, forms of team diversity.
Harvard Business Review has promoted the idea of fair chance hiring, which is “based on the premise that everyone, regardless of background, has the right to be fairly assessed for a role they are qualified for. The fact that Black people are more likely to face arrest and criminal charges — Black men are incarcerated at more than five times the rate of white men — means that they are more likely to be barred from entering the workforce because of a criminal record.” By ignoring a criminal conviction for a person of color, a business can start to address the long legacy of compounding inequities in the U.S. that lead to fewer people of color in the workforce after disproportionate criminal convictions and biased policing. Businesses also benefit from these broader perspectives in different roles.
When making a decision about hiring someone with a conviction, businesses should consider their state laws and EEOC guidelines to shape internal employment and screening policies for compliance. Discriminatory hiring practices against people with criminal convictions violates many types of legal mandates.
Ignoring a criminal conviction can come with certain risks each business needs to consider for each candidate, role, and conviction context. Most businesses are accustomed to taking on all kinds of risk from financial to growth practices, and hiring practices are no different. Companies should ask how much risk are they willing to take -- and is the hiring practice around this risk applied equally across all candidates?
Some types of convictions in certain roles may reasonably prohibit a candidate from being hired. Industries that work with vulnerable populations, such as elder care or childcare, healthcare, and education are more sensitive contexts where some types of criminal convictions can create real problems for a company. For instance, hiring someone with multiple violent felony charges for a teaching position -- or hiring someone on the sex offender registry for a nannying position -- should definitely be considered extremely high risk and disqualify a candidate. Unless some outstanding circumstance like an inaccurate or overturned conviction can offer context in these roles, it’s best practice to protect vulnerable clients or customers.
Companies who do not weigh these kinds of risks skillfully can potentially trigger negligent hiring suits and other kinds of violations where they were required to protect their teams and clients with a safe workplace. A strong background check process that ensures accuracy and makes space for humanity in its screenings can protect businesses. In all hiring decisions--including these situations--companies are required to do their due diligence weighing risks.
When hiring where criminal convictions are a factor under consideration, companies must have a policy in place for each position or for their industry context to assess benefits and risks. Because so few companies have these in place -- and so many people in the United States have legal history -- a thoughtful policy can fill the gaps.
As an interesting guideline to follow, Illinois recently passed an amendment to its Human Rights Act (IHRA) and the Illinois Equal Pay Act, which prohibits businesses from denying hiring someone solely on the basis of their criminal record, unless one of two criteria are met:
These kinds of guidelines can support businesses deciphering the impacts of ignoring a criminal conviction. Talent acquisition expert Roy Maurer suggests that hiring teams should ask a variety of questions to inform their decisions about criminal convictions:
The extra effort to build company policy around this issue and consider the broadest context can help employers avoid risks and fair hiring violations, but most importantly, companies can end up with committed, talented teams they may have otherwise overlooked.