Criminal Background

Consider the risks—and rewards—of hiring ex-offenders.

By Eric Krell Feb 1, 2012
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Anecdotes about recruiters hiring ex-offenders often conclude with straightforward notes of inspiration and mutual value:

The bank official who rehired a promising employee after he completed a sentence for drunk driving gains a loyal, diligent manager.

The single-parent nurse—whose criminal background turned out to be caused by an ex-husband with a penchant for check fraud—gets hired, performs well and establishes financial security for her family.

An inner-city social service puts dozens of ex-offenders to work each year, saving millions in incarceration costs while generating millions in wages and taxes.

On closer inspection, however, the larger story of employing ex-offenders is more complex and is often rife with plot twists, including looming federal policy changes, new legal precedents, contentious recidivism research, evergreen concerns about hiring risks and growing competition for skills. HR professionals must consider terms such as "ban the box," "negligent hiring," "redemption research" and "disparate impact."

Anecdotes, stories and issues that relate to hiring ex-offenders are likely to become more prevalent in coming years. A recent analysis by the National Employment Law Project shows that more than one in four U.S. adults have an arrest or conviction that would appear in a routine criminal background check. The project's lawyers claim that many adults with criminal backgrounds face "unprecedented barriers to employment."

Officials at the U.S. Equal Employment Opportunity Commission (EEOC) have been scrutinizing these barriers—and appear highly likely to make significant changes to federal policies that govern how employers can use information obtained from criminal background checks when hiring employees. The commission's changes would force recruiters to thoroughly re-examine their use of criminal background checks.

As an HR issue, hiring a candidate with acriminal history "poses some of the greatest challenges," asserts Barry Hartstein, a shareholder with Littler Mendelson PC in San Francisco.

Despite those challenges, in recent years many HR professionals have gained valuable insights regarding risks, compliance and processes related to hiring ex-offenders. The keys to making a good hire, experts say, are to closely monitor equal employment opportunities and a range of relevant state laws, check with legal experts when necessary, and put in place carefully considered policies.

"Managing criminal background checks and other facets of the screening process represents an incredible amount of work," asserts Robert Smith, human resources director for the City of Fountain in Colorado.

Heartfelt Testimonials

Smith and other HR professionals with experience developing and managing screening policies report that their hard work pays dividends.

When Beverly Widger, SPHR, senior vice president of Mascoma Savings Bank in White River Junction, Vt., recently left her previous employer, Claremont Savings Bank, a young employee handed her a touching thank-you note expressing gratitude for her role in resuscitating what he thought was a damaged career. The employee joined the bank right after college and quickly rose to assistant manager. After celebrating his promotion that evening, the young man ran a stop sign and slammed into a police car, which resulted in an arrest for driving while intoxicated and three months in jail. He resigned, apologized to his manager and Widger, and began serving his sentence.

He stayed in touch with Widger, who explains, "He wanted to turn this into a cautionary experience that he could share with high school students." She invited him to reapply following his jail stint.

"When he completed his sentence," Widger says, "we had a position that opened that fit his skills." Bank policies did not preclude hiring the young man; had he been convicted of a felony related to financial fraud, he could have been disqualified. "His performance has been excellent," Widger continues. "He said it was the most difficult lesson of his life and that it was also hard to come back to work, where everyone knew about what had happened because it was in the paper."

Other HR professionals recount gratifying experiences when hiring ex-offenders, most of whom are first-time hires. Such gratification is often measured in business terms.

"We don't hire people because they are ex-offenders, we hire people because they're the most qualified," notes Mark Washington, human resources director for the City of Austin in Texas. The city has an obligation to support qualified ex-offenders in their transition to civic life: "There is a social responsibility for government to help enable that benefit for the community," he explains. "The more productive and employable we can make all of our citizens, the more they can provide to the society they live in."

That said, Washington emphasizes that the primary driver for the City of Austin in hiring ex-offenders relates to skills. Almost four years ago, city officials decided to "ban the box" and remove job application questions that ask if a candidate has been arrested or convicted of a crime. Since then, Washington says, more qualified candidates with criminal backgrounds—candidates who previously may have opted against completing the application due to the background questions—have applied. "There are extremely talented and qualified people who happen to be ex-offenders," Washington adds. "They are just as productive as people who do not have criminal records."

More Federal Oversight on the Horizon

At press time—and ever since a July 2011 meeting that examined the use of arrests and convictions as a potential hiring barrier—officials at the U.S. Equal Employment Opportunity Commission have been poised to update long-standing guidance on the use of criminal and credit records.

Since 1987, when the commission published guidance on pre-employment selection guidelines, employers have been using the following considerations to guide their decisions in response to information contained in criminal background checks on job applicants:

  • The nature and seriousness of the conviction.
  • The length of time since the offense occurred.
  • The job-relatedness or relevance of the offense.

Since October 2011, the commission has been expected to provide new or additional guidance related to whether:

The use of criminal background checks may discriminate against some groups of candidates and employees—and thus disparate impact will be presumed.

An employer will have to adduce empirical evidence to substantiate the business necessity defense, such as providing a compelling case of how the use of criminal background checks bolsters employee safety or provides another business necessity.

Some organizations, such as DC Central Kitchen in Washington, D.C., hire people because they are ex-offenders. These employers operate with a mission to help ex-offenders transition to civic life by equipping them with jobs and training.

DC Central Kitchen prepares and delivers more than 6,000 meals to shelters, transitional homes, halfway houses, senior centers, after-school programs for children and other clients daily. The organization offers ex-offenders training and wages. As many as 100 of its graduates accept jobs in the hospitality industry annually.

How You Can Help Ex-Offenders

HR professionals can expect to screen, interview and hire more individuals with criminal offenses in their backgrounds, according to several sources, including researchers at the National Employment Law Project.

While the legal and risk management facets of screening and hiring ex-offenders receive significant coverage, the more-human aspects of the interview process tend to receive short shrift. Two HR professionals with experience hiring ex-offenders—Beverly Widger, SPHR, senior vice president of Mascoma Savings Bank, and Linda Albert, SPHR, director of human resources for Portland Public Library in Portland, Maine—share some qualitative guidance.

Exposure and experience help. Widger accompanied parole officers during their meetings with ex-offenders and visited one-on-one with prisoners through a state leadership program a dozen years ago.

Albert once worked with offenders in the prison system as a rehabilitation counselor. In addition to her current role, where she works with and sometimes hires ex-offenders through a community service placement program, Albert counsels ex-offenders on job interviewing through a local partnership. Both say these experiences taught them how to discuss past crimes with ex-offenders if the topic arises in interviews.

Ex-offenders should take responsibility. When she interviews an ex-offender and discusses a relevant previous offense, Albert listens for how the candidate describes what happened. "You want to hear the person take responsibility for his or her offense," she says. Albert counsels offenders on this point, saying, "Talk about what happened, take responsibility, and lay out the steps you are taking to prevent it from ever happening again."

Know the challenges ex-offenders face. When ex-offenders return to civilian life, they often struggle with fulfilling basic needs, such as housing and transportation. When Widger hired an ex-offender in a previous job with a restaurant company, she arranged for the company to provide transportation to get the new employee to and from work. "They're often starting over with nothing," Widger explains. "As an employer, you need to recognize that."

The program eliminates at least $2.4 million in incarceration costs annually, reported Michael Curtin, chief executive officer of DC Central Kitchen, in his July 2011 testimony at an EEOC hearing held to examine arrest and conviction records as hiring barriers.

Last year, graduating ex-offenders"made approximately $2 million in wages, contributing another $100,000 in payroll taxes alone," he said. "Of course there is the enormous associated spin-off revenue—they are out of supported housing, paying rent, buying food, buying clothes, going to the movies and supporting their families."

Curtin noted that 38 percent of his current workforce of 115 full-time employees consists of ex-offenders, many of whom are in management roles. "These people earn roughly $1.2 million and pay the District approximately $60,000 in payroll taxes" annually, he continued. "Add in the associated economic activity of this group, and we are talking huge numbers. This is just another reason why this issue needs to be looked at as an economic development issue and not strictly a social services one."

Some believe employers should consider treating the employment of ex-offenders as a talent matter. As the economy rebounds, increasing demand for labor "is going to require that companies and other employers become more and more competitive in how they acquire talent," Washington says.

Legal Considerations

HR professionals must consider the potentially thorny legal issues involved in hiring ex-offenders. For recruiters responsible for background screening, the challenge lies in balancing the need to:

  • Keep customers, employees and workplaces safe.
  • Fulfill their organizations' skills and talent needs.
  • Avoid decisions that could be considered negligent hiring.
  • Comply with relevant laws and rules.

Although the EEOC's guidance and activities regarding criminal background checks receive the most attention, numerous other federal and state laws also come into play, depending on an employer's industry. "Regulatory requirements affecting hiring and background screening can be complex and confusing," notes Steven Kraus, president ofVeriCORP Inc., an employment screening company in Louisville, Ky.

In addition to the equal employment opportunity requirements, relevant laws and regulations in many cases include the:

  • Federal Fair Credit Reporting Act and 13 state analogues.
  • Driver's Privacy Protection Act of 1994.
  • Gramm-Leach-Bliley Act, which regulates the financial services industry and some positions responsible for handling financial information.

In his July 2011 testimony before the EEOC, Hartstein identified nine states and the District of Columbia as having laws and legal provisions that limit how employers can deal with applicants' criminal histories.

Title VII of the Civil Rights Act of 1964 also figures in, notes Pamela Quigley Devata, a partner in the Labor and Employment Practice group of Seyfarth Shaw LLP in Chicago. It protects applicants with a business necessity standard. Application of that standard and the degree to which employers' conviction-based screening policies may disparately impact certain groups of applicants represent concerns for the EEOC.

Devata emphasizes that the Fair Credit Reporting Act does not apply exclusively to a candidate's credit history, but also to instances when employers use third-party consumer reporting agencies to obtain information related to an individual's character, reputation, personal characteristics or mode of living.

Laws require that recruiters in a handful of industries, including insurance, financial services and firearms sales, conduct criminal background checks. Recruiters in other industries and providers of certain types of services, such as nuclear power generation, aviation, child care and adult care, and health care, are subject to industry-specific requirements for background checks.

Generally, recruiters for many organizations will exclude from consideration ex-offenders convicted of crimes related to sex, fraud or violence in accordance with EEOC guidance. Many employers also exclude ex-offenders with drug-related convictions, particularly offenses related to the manufacture or sales of drugs, note Devata and Littler Mendelson shareholder Rod Fliegel.

Fliegel asserts that it is "difficult to generalize across all business and industries because there is a significant variation in policies, practices and procedures."

Navigation

When it comes to employing ex-offenders, there are legal protections for applicants, employees and organizations, says Steve Millwee, founder and chief executive officer of SecurTest Inc. in Athens, Ga. The following actions can help employers navigatethe legal environment:

Monitor relevant rules and rulings. "You should not create a policy and then leave it on the shelf," Devata cautions.

Fliegel suggests that employers continue to be mindful of, and comply with, laws that impact the use of criminal records in addition to Title VII, including state fair employment and fair credit reporting laws. The latter "have become a fertile source of class-action litigation against employers," Fliegel says.

Think before you post. Last year, lawyers at the National Employment Law Project examined thousands of employment ads in five U.S. cities on Craigslist to determine if employers used language in ads that ran counter to the intent of the EEOC's guidance on criminal background checks. A report, 65 Million 'Need Not Apply': The Case for Reforming Criminal Background Checks for Employment, concludes that "some of the nation's largest employers and staffing firms post ads broadly precluding consideration of individuals with criminal records. … Numerous smaller companies also excluded people with criminal records from consideration for advertised jobs." Blanket policies that researchers take issue with include language related to:

  • No arrests.
  • Clean or clear records.
  • No felony or misdemeanor convictions.
  • No felony convictions.
  • No convictions within a specified time frame.

Consider leading policy practices. Screening policies vary by industry and company due to legal requirements and each employer's risk profile. That said, experts point to leading practices related to screening.

Always a Criminal?

Recidivism research crops up in employee screening debates—often to further arguments for and against the use of criminal background checks in the hiring process. Academics Alfred Blumstein and Kiminori Nakamura conduct research on recidivism, and their work is frequently cited.

The most recent federal research, conducted by the U.S. Bureau of Justice Statistics in the mid-1990s and 2007, indicates that most ex-offenders present some risk of committing another crime, but not necessarily the same type of crime, and that recidivism risk is highest within three years of release.

Blumstein and Nakamura's research with ex-offenders in New York state indicates that while ex-offenders have a relatively high rate of recidivism in the first five years following arrest, ex-offenders who do not get arrested during those first five years are about as likely to commit a crime as someone in the general population.

To date, recidivism research is not definitive, according to Littler Mendelson shareholder Rod Fliegel and other legal experts. Many point to the ruling in El v. SEPTA (479 F.3d 232 (3d Cir. 2007)) as an influential disparate impact decision. A background check revealed a 40-year-old murder conviction and led to the firing of a bus driver. The driver filed a complaint with the U.S. Equal Employment Opportunity Commission alleging that the Southeastern Pennsylvania Transportation Authority discriminated on the basis of race, in violation of Title VII, via its criminal background policy. The court ruled that the policy was a business necessity.

First, most practitioners and experts agree that background checks should be conducted after a candidate enters the final stage of the hiring process.Second, Washington and Smith suggest that a portfolio management approach helps ensure that background checks are relevant to specific jobs. Both HR managers have developed "screening profiles" that identify the types and depth of background checks each job should receive. In the City of Fountain, for example, a candidate for an office position would not be subject to a background check on driving crimes. And candidates for the police force, firefighting team, and finance and accounting offices receive more-intense checks than candidates for parks maintenance positions.

"Be certain that any internal restrictions on the hiring of ex-offenders are justified based on the specific position's requirements," Kraus advises. "A broad, overall policy may not be defensible."

Third, keep criminal background reports out of personnel files. "The only person who needs to know what information was on the person's background report is the person who made the hiring decision," Devata says. A central screening process is ideal. In this model, an HR professional or in some cases a risk management professional views the results of the background check and simply relays a "pass" or "fail" message to the hiring manager. Establish firewalls, Smith advises.

Consider external review. Most smaller employers have a relatively small chance of incurring a Title VII disparate impact lawsuit, lawyers say. Large organizations with operations in many states typically have higher levels of disparate impact risk, and they "may have risk of claims in particularly litigious states, such as New York, Illinois, Wisconsin and California," Fliegel notes. To address this risk, subject screening policies to review by a legal expert. During these exercises, lawyers typically prioritize concerns, help employers defend their policies, suggest improvements and sometimes consult with other experts, such as criminologists.

Inform the workforce. "There is a level of awareness that should occur on the employer side, not only among those who hire but throughout the workforce," says Washington, adding that the City of Austin has included general information about working with ex-offenders in discussions during diversity training.

Washington does not share specific results of background checks with hiring managers; he shares a "pass" or "fail" verdict. However, an individual's criminal background may crop up in employee interaction. "Our intent is to make sure that people understand and respect each other for what they can do, as opposed to judging them for something that they did in the past," he explains.

Review your approach regularly. Washington and his team review their position-specific background screening approach annually or semiannually, depending on the nature of the positions. Jobs that require employees to interact with vulnerable populations and jobs with financial responsibilities are assessed more frequently than lower-risk positions. Screening experts recommend this type of review.

Laws and legal interpretations of rules regarding the use of criminal background checks change regularly, and there is no need for an employer to court unnecessary risk of legal or civil actions due to outdated policies.

Take a Chance

By limiting risks, employers can focus on the process of hiring ex-offenders. It requires a variation on risk management, and one with potentially happier endings.

"As someone who hires people, I think HR professionals take a chance whenever they make a job offer," says Linda Albert, SPHR, director of human resources for Portland Public Library in Maine. "With ex-offenders, if you and the applicant are comfortable with what the crime was and how the applicant has responded to that experience, you can take that chance. … I will say that we have taken that chance, by hiring [ex-offenders] who initially came to us through a community service program and who have been very, very successful."

The author is a business writer based in Austin, Texas, who covers human resource, finance and social marketing issues.

Discuss this article:

Do you have a policy in place that allows you to hire some people with certain kinds of criminal backgrounds?

Do you have suggestions for interviewing people who have criminal backgrounds?

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