Portrait Of Criminal BusinessmanAccording to FBI statistics, more than 3 in 10 American adults have some kind of criminal record. That doesn’t necessarily mean convictions, but still companies have to deal with the issue of hiring people with, let’s call them, unsanitary backgrounds.

As an article in the Wall Street Journal points out, “Companies seeking new employees are forced to navigate a patchwork of state and federal laws that either encourage or deter hiring people with criminal pasts and doing the checks that reveal them. Employers are having to make judgments about who is rehabilitated and who isn’t. And whichever decision they make, they face increasing possibilities for ending up in court.”

Employers can end up in court two ways, according to the Journal: either from lawsuits from people not hired or by government action. “Ignoring the records can leave a company vulnerable to making bad hiring decisions and to lawsuits. But using them can raise the ire of government officials and lead to charges of discrimination,” the article said.

Background checks declined slightly from 2010 to 2012. The Wall Street Journal article suggests why: “Much of the nervousness traces to a 2012 document from the U.S. Equal Employment Opportunity Commission. It recommended that employers not ask about criminal records on initial application forms. Before rejecting someone because of a criminal record, it said, the employer should examine such things as when a conviction occurred, whether the crime was related to the job in question and what rehabilitation efforts the individual had made. Though not a law, the document, called an enforcement guidance, has teeth. It is the EEOC’s position on what the 1964 Civil Rights Act’s employment-discrimination section, Title VII, requires of employers.”

The issue is already coming to a head in Massachusetts, with the approval of new casinos there. According to WWLP-TV, “Massachusetts gaming industry regulators are interested in re-opening the 2011 law that authorized up to three casinos, saying the statute is inconsistent with reforms to criminal records standards. Gaming Commission Chairman Stephen Crosby said the statute the commission operates under has a ‘very strict’ background check requirement and some believe it is too ‘rigid’ for potential low-level gaming facility employees with criminal records.”

In other words, the casinos were approved with the intent of improving the commonwealth’s unemployment woes among the lower class. Yet, many of those lower-class people might have criminal records within the last 10 years that preclude them from getting hired, even in non-sensitive jobs.

Potentially, it may even be a problem of racial discrimination. Back to that Wall Street Journal article: “A 2009 study of 250 entry-level job openings in New York City found an applicant’s likelihood of getting a callback or job offer fell by nearly 50 percent with a criminal record. Black applicants with records fared far worse than similarly situated white applicants in the study, done by researchers at Princeton and Harvard universities.”

Also, there’s the issue of how to use the criminal records as a hiring decision. Do you not hire a person to be an office manager because he or she was convicted of driving while under the influence five years ago? What do you do if someone was convicted of possession of marijuana, for example, even though it has been decriminalized in many states?

Here’s some perspective on the issue from the Legal Action Center of New York City: “While employers certainly should take into account a person’s criminal history for the sake of determining if the person’s conviction records are job-related, having flat bans against employing qualified people with criminal records limits the employer’s opportunity to attract and retain a large percentage of the workforce who is trained, motivated, and who has access to a number of resources employers could gain benefit from.”

Comment below if you have experience in this area that you want to share.

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