Hiring People with Criminal Backgrounds Is Easier Than You Think

 

Roy Maurer By Roy Maurer March 19, 2019
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​Julie Olson, a benefits broker, and attorney Heidi Mason, SHRM-SCP, speak during a panel on second-chance hiring at the 2019 Society for Human Resource Management Employment Law & Legislative Conference.

​Second-chance hiring—recruiting and hiring people with criminal backgrounds and eliminating obstacles to those efforts—is building momentum among policymakers, say business community leaders and worker advocates.

Genevieve Martin, executive director of Dave's Killer Bread Foundation, a prominent voice in the second-chance movement, told attendees at the 2019 Society for Human Resource Management Employment Law & Legislative Conference March 18 in Washington, D.C., that hiring people with felony convictions shouldn't be a "big, scary thing."

She led a panel of experts to address what many in the room may have been thinking: Second-chance hiring is well-intentioned, sure, but how do we actually do it?

[SHRM toolkit: Getting Talent Back to Work]

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Heidi Mason, SHRM-CP, an attorney with Innova Legal Advisors in Lake Oswego, Ore., reminded HR professionals that whether or not they are on board with second-chance hiring, they should still be considering applicants with criminal histories. "In most cases, having an across-the-board ban on hiring someone with a criminal record may run afoul of Title VII of the 1964 Civil Rights Act and the 2012 EEOC [Equal Employment Opportunity Commission] guidelines."

She said that the idea that it's HR's job to protect the employer by not considering applicants with criminal backgrounds is wrong. "In order to protect the company and show due diligence in hiring, HR should be making reasonable inquiries at the appropriate time and in the appropriate manner as to somebody's criminal history," she said.

Thirty-three states and more than 150 cities and counties require ban-the-box policies for public-sector jobs, and laws in 11 states and 17 cities require private-sector employers to "ban-the-box"—a term that refers to the removal of the check box on job applications that applicants mark to indicate they have a criminal history. The laws are intended to give formerly incarcerated job applicants a fairer chance to attain employment. "Generally speaking, this means as an employer, you shouldn't be asking about criminal history on your job application," Mason said. "It doesn't mean you can't ask about it later or at all."

She added that employers not covered under a ban-the-box law can still choose to delay inquiring about criminal history until later in the hiring process in order to promote fairness and give everybody an opportunity to compete for an available job.

Many times, the candidate brings up the issue during the interview, she said. That could be awkward, but it doesn't have to be. 

"When that happens, it's up to HR to control the conversation and say, 'Thank you for telling me. I appreciate your honesty and willingness to talk about it. But I want to let you know upfront that, just because you have a criminal record, doesn't necessarily mean you are disqualified from employment, depending on the nature and circumstances of the offense.' "  

When it comes time to evaluate someone's criminal history, you should be looking first for context and accountability, Martin said. "Does the person take ownership for their background? And who are they now? Have they invested in themselves? Have they improved their skills?" 

Pertinent questions to ask include:

  • 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?

Pamela Mack, vice president of business development for background-screening firm Occuscreen, said that HR can be judicious in what types of screens it asks for. "You don't have to screen for all types of convictions, depending on the job," she said. For example, driving records are not needed for nondriving roles, and credit information is unnecessary for nonfinance roles.

The Johns Hopkins Health System Corp. performs individual assessments on each candidate whose pre-employment screen is flagged with a criminal record. The hospital system's guidelines mirror those of the EEOC. 

"Sometimes after receiving an explanation from a candidate with a record who's been denied the job, I'll make another recommendation to give the person a second consideration," said Joe Phelps, a background investigator for Johns Hopkins Health.

Addressing Common Concerns

Many employers worry that hiring people with criminal backgrounds will lead to increased insurance costs. Not so, said Julie Olson, a Washington, D.C.-based benefits broker at Olson Benefits Group. "For most core lines of coverage, including property, casualty, workers' comp, and umbrella, employees' criminal backgrounds don't have much impact," she said.

But there are some areas that could be negatively affected, Olson said. Insurance coverage for employee actions and the employee-employer relationship, such as employment practices liability insurance and commercial crime insurance, could be costlier.

"In those areas, the most important things you can do to favorably impact your insurance costs is to clearly demonstrate that you have good, sound, consistent processes in place for hiring and employee relations, performance evaluation and employee advancement."

Negligent hiring is another top concern for HR. Employers can be held liable if an employee injures someone while working. Mason is often asked about negligent hiring. Her response: "Negligent hiring is a real risk. However, there is a way to mitigate that risk: Don't be negligent."

She's not being facetious; employers can be held legally responsible only if they acted carelessly. "HR just needs to be reasonable under the circumstances—that's the bar," she said. "You will meet that bar if you follow the EEOC guidelines. [Document] your judgment calls when making hiring decisions and the reasons you made those decisions. Take good notes to inform your consideration. Documentation will show that you were diligent in your decision-making process. You may not be right every time, but you won't be negligent." 

Phelps said of the 2,292 candidates with criminal histories hired over the last six years at Johns Hopkins Health, only one ended up being a problematic termination.

SHRM encouraged conference attendees to join over 500 companies, nonprofits and associations representing more than 60 percent of the U.S. workforce and sign the Getting Talent Back to Work pledge to give job opportunities to qualified people with a criminal background.

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