Evaluating Job Applicants with Criminal Histories

Providing a second chance to job candidates with criminal records may have benefits for candidates and companies alike. A good way to generate more qualified applicants and promote second-chance hiring is to have a screening process that eliminates employment barriers based on expungeable or sealable criminal records, advocates told SHRM Online.

"In today's job market, companies may overlook many excellent job applicants when HR departments disqualify applicants based upon background checks that reveal records that are eligible for expungement or sealing," according to the Honorable Dorothy Brown, clerk of the Circuit Court of Cook County, Ill.

Eligible records are usually related to nonviolent crimes, arrests without convictions and first offenses.

[SHRM members-only toolkit: Conducting Background Investigations and Reference Checks]

What Is Expungement?

Expungement typically refers to erasing certain criminal records. Sealing a record, on the other hand, usually means that the record still exists in the criminal justice system but isn't accessible to the general public.

The precise definitions of these terms, however, differ from state to state—and under some state laws "expunging" and "sealing" both simply mean that the public can't access the records.

What records are eligible also varies widely from state to state, though arrest records and first offenses for certain nonviolent criminal convictions are commonly expungeable or sealable.

In Illinois, for example, arrest records may be expunged—meaning physically destroyed or returned to the individual—if the person has never been convicted of a crime. Otherwise, the records may be sealable. Some misdemeanor convictions and certain limited drug- and prostitution-related felonies in Illinois can also be sealed.

Hiring Candidates with Records

So, what do these laws mean for the hiring process? If a person successfully petitions the court to have a record expunged or sealed, he or she typically doesn't have to mention the record in the hiring process (though there are exceptions for some government and public-service jobs).

However, job candidates and hiring entities may not know which records can be expunged or sealed and removed from consideration in the hiring process.

Therefore, HR professionals may want to learn about their state's laws and consider developing a screening process that doesn't count expungeable or sealable offenses against a candidate or that allows the candidate time to petition a court to expunge or seal the record.

"When these otherwise qualified individuals are not hired, companies lose out on potentially very good and motivated workers, and the community is affected by higher unemployment rates and economic instability," Brown said.

Another challenge for candidates is that some third-party background screening companies buy bulk data, explained Beth Johnson, director of legal programs for Cabrini Green Legal Aid in Chicago. The data might be old, or something may have changed from time it was put in the database.

Johnson said it's a good practice for employers to make sure their background checking company has a good system in place for updating records. She suggested that employers ask bulk-data purchasers how often they update their information.

Background Check Laws

When developing a screening process, employers must also consider the various federal and state laws that govern background checks.

Under the federal Fair Credit Reporting Act, employers must inform candidates and receive authorization when using a third party to obtain consumer reports. Employers must also provide certain notices if an adverse employment action will be taken based on information revealed in the reports.

"Pre-adverse action letters are so critical to the process because you may be losing good candidates over bad data or wind up being sued," Johnson said.

Additionally, the Equal Employment Opportunity Commission published guidance in 2012 that encourages employers to evaluate the job-relatedness of criminal records and give applicants a chance to explain any criminal records revealed during the screening process.

Employers must also be aware of any "ban-the-box" or "fair chance" laws in their city or state that direct when in the hiring process criminal history inquiries can be made. Furthermore, state background-check laws may have their own notice requirements and other rules restricting the use of criminal records in selection decisions.

[SHRM members-only HR Q&A: When do employers need to comply with the Fair Credit Reporting Act?]

Recommended Practices

Brown suggested that HR professionals consider the following strategies when developing and implementing background screening procedures: 

• Learn the expungement and sealing laws of the state, and create an assessment that is consistent with the law.
  
• Establish a standard policy on hiring individuals who have records that are eligible for expungement or sealing.
  
• Specify that job applicants do not have to disclose any expunged or sealed records.
  
• Inform potential job applicants about the company's HR policies concerning individuals who have records that are eligible for expungement or sealing.
  
• Apply the background screening procedures consistently and fairly to all applicants.
  
• Evaluate how the background screening procedures are affecting the company's workforce.

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