Caitlin Trent | 26 May, 2021

 

Roughly 77 million Americans have a criminal record that must be reported as part of an employment background check, making red flags from legal system history a common occurrence. This means if companies incorrectly interpret what those red flags mean for their unique hiring situations, they may miss out on hiring talented candidates. At the same time, employers must protect themselves from negligent hiring liabilities or high-risk situations.  

The key is for companies to use these screenings more thoughtfully and strategically, certainly not as a blanket employment ban for anyone with legal system history. In addition to being unethical, that can also be grounds for fair hiring violations in some contexts. Used equitably and in appropriate ways, criminal background checks can ensure companies balance these considerations and hire strong teams. 

What's the Problem with Screening Out All Applicants with Criminal Backgrounds?

Criminal background checks have been common practice for employers for decades. Unfortunately, this can reproduce well documented inequities in the criminal justice system that disproportionately impact communities of color and those in poverty. For employment, this means that far fewer black Americans receive a call back compared to white Americans with the same criminal background. 

According to the EEOC (Equal Employment Opportunity Commission), “National data . . . supports a finding that criminal record exclusions have a disparate impact based on race and national origin.” Avoiding race-based discrimination when considering a criminal background is part of breaking cycles of compounding inequities, strengthening brands’ connection to local communities, and protecting companies from employment violations.   

Criminal background checks may also inappropriately flag a prospective employee as unqualified simply because they have been  charged but not convicted of a crime. A study conducted by the Bureau of Justice Statistics found that up to one third of all felony arrests did not result in a conviction. Given this context, it’s important for companies to understand the role the criminal legal system plays in employment processes - and why red flags may not paint a complete picture of candidates. 

Background checks that leverage a more personal exploration of candidates’ qualifications, character, and history will provide employers with a stronger, more accurate sense of whether they should overlook a criminal background for a particular hiring scenario. In some cases, legal system history may actually inform a candidate for a particular role and offer a company a diverse, important perspective that strengthens their team. Accurate, humanized background check processes can help discern this. 

This personal, context-based approach to hiring and background checks can also help employers understand lower level legal system flags. For example, hiring experts at The Balance Careers explain,  “What may look like a red flag could actually be a red herring...For instance, a citation for walking a dog off-leash or for fishing without a license does create a criminal history, but it does little to portray the type of skills a potentially reliable employee could bring to the job.”  

In other words, a potential recruit may have been unfairly thrown into the criminal legal system and, despite applicable skills and determination to do the job, come out of the system struggling for employment. This happens even though they have not been convicted with a crime, or the criminal background they have is minor and irrelevant for the position..  Companies should thoughtfully differentiate the context of different legal system histories and focus on screening in, not just screening out, to find a talented fit. 

Hiring Beyond Criminal Legal History Can Give Companies an Edge

Contrary to the stigma, hiring people with legal system history can be an asset.  Currently, many companies are struggling to find employees, and nd, according to senior researchers at the Urban Institute, “When labor markets are slack, it doesn’t serve employers well to miss out on good hires because of inaccuracies or misconceptions.”  Companies will gain an edge in the hiring market by actively educating themselves about these issues and intentionally using more sophisticated background check processes to select candidates. 

A thorough effort early on ultimately saves time and money...and companies may even end up with employee talent and insights they didn’t expect. Margie-Lee Johnson writes for the Harvard Business Review, “People with criminal records are no more likely to be fired for misconduct than people without records. They’re also statistically less likely to quit, which saves employers a considerable amount in turnover costs. You’re likely to see more creative problem solving, greater empathy, higher engagement, and unique and valuable viewpoints.”

'Criminal' Context Matters

When considering someone with a criminal background, employers should consider the job, the candidate and the crimeas a whole. ‘Criminal’ ultimately only means someone has a legal violation of some kind, so companies need to determine if the type of violation holds any bearing on a candidate’s ability to fulfill a specific role. If not - or if the law itself is outdated or problematic - the employer may ultimately be hurt by dismissing these candidates without further exploration. Employers can set themselves apart by considering the bigger picture and benefits to their team. 

 

The Job:

Take the specific position into account.  For example, does the position work with vulnerable populations?  If a business is are looking for nannies to care for children, criminal records and, specifically, the sex offender registry should be highly scrutinized compared to hiring for other kinds of positions working with different clientele.  Companies should consider what specific qualities your business is looking for to do the job well, and how that may relate to a criminal background. 

 

The Candidate:

Take the entire resume and work history into account, rather than one incident. Screening for prospects who are a great fit with key skills and know-how - even with a single misdemeanor,  can help businesses make a great hire. Look at the bigger picture, patterns and trends, rather than just “the box” to see if candidates have ever been convicted of a crime.  Use background checks that cross-reference and ross-check sources like references and work history as well as ask candidates more personal information about their growth since the charge or conviction. This can provide hiring teams with the necessary information and fuller picture to see candidates outside of their legal system history. This approch can benefit companies, candidates, and communities. 

 

The Crime:

Employers may be wary of hiring someone with several violent felonies, but are comfortable hiring someone with a DUI. (Again, consider -- what job is it?  If the position is a truck driver, this may weigh more heavily). Furthermore, when was the crime committed, and have laws changed since then, as with many marijuana-related cases?  If your applicant committed a crime 20 years ago, they may have evolved in meaningful ways; society may have evolved too, and businesses can benefit from considering either of these cases when making hiring decisions.

 

The Society for Human Resource Management suggests hiring teams should ask these kinds of questions: 

  • What was the nature and severity of the offense?
  • How long ago did it occur?
  • How long was the sentence?
  • How long has it been since he or she was released?
  • Have there been any other offenses since being released?
  • Does the person have a parole officer, and, if so, is the employer able to talk to the parole officer?

 

 

Consistency is Key for Fair, Skilled Hiring

Businesses should cultivate policies that determine when to hire and when not to hire a prospect with a criminal background. From a legal and personnel position, it is often more beneficial to employers, teams, and the communities where their brands work to err on the side of inclusivity.  Companies who educate themselves can create stronger internal policies, and using a strong background check tool can humanize the process for an edge in the talent market.  This also protects companies from falling  into unconscious biases that endanger the legal status of the company. A consistent, documented practice for this kind of hiring will protect the company and strengthen the entire team.  Statewide employment advocacy organization, the Connecticut Business & Industry Association, encourages companies to think more broadly: “A criminal record should never be viewed as an automatic disqualification for employment.”

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