Big Dilemma-- Job Applicants with Criminal Records

San Francisco is the latest city to present legislation that would prohibit employers from asking job applicants if they had any prior convictions.  If the legislation is passed, San Francisco will join about twenty one other cities in banning the box, as it is known.   Banning the box refers to the check box on job applications, asking if an applicant has had prior criminal conviction.

Among the twenty one cities, Cincinnati, Boston, Chicago, Philadelphia,  and Austin, Texas,  are included among those that have already banned the box.  Certain states have passed laws removing the felony question.  This list includes  Minnesota, New Mexico, Hawaii and New York.

San Francisco's aim is to cut the rate recidivism so that convicted felons can find their way back into reputable society by gaining access to a productive job.   The law would carry with it potential issues of discrimination if the employer rejected the employment candidate when the crimes for which he was convicted had no relation to the job.

According to an articles in the LA Times, "Specifically, the law would require that questions about criminal background be deferred until a determination is made that the applicant is otherwise qualified. A rejection would then be permitted based on an applicant's prior conviction only if it were "substantially related" to the job or housing in question..... Someone convicted of embezzling, for example, could be turned down for a job working with money."

The new law would not interfere with prior state or federal laws or be applicable for those felons applying for jobs in law enforcement, child care, and other industries.   However, the new law would apply to a wide range of industries and to private employers may feel uncomfortable hiring  a convicted  felon and bringing him into the workplace.    The new ordinance also applies to landlords who may not ask if the applicant for an apartment has a previous criminal history.

I believe that convicted criminals should be given a second chance.  And to a certain degree I see the logic to this ordinance.  And to another degree I consider the rights of an employer or landlord.  Is it such that under the law they must now hire a sex offender or admit one to his apartment complex.  This could be forced upon a landlord or employer because the sex crime conviction may not be deemed relevant to the job./  However, sex offenders can prove extremely toxic in the workplace and may be a direct threat to children living in an apartment building.  Sex offenders can't go near schools, but landlords must permit them residence with impunity?  That doesn't seem all that logical and the local governments may be imposing legislation that may nullify the elementary rights of  employers and landlords.  Local governments may be imposing codes and standards that may in the end prove unconstitutional.

I am concerned with how these new laws impact negligent hiring statutes.   There seems in some ways a notable contradiction.  Should the convicted felon act out in the workplace, should he hurt someone, rape someone, or even kill someone, it is the employer that will be responsible.  The employer will be accused of violating the laws related to "negligent hiring.."  

Additionally, the employer will be confronted with negative public reaction.  As violent incidents are prone to do, they make the news and stimulate public awareness.  The employer's clients will also hear about it, which isn't a particularly good public relations boost.  People  will then wonder how and why did the employer allow such a person to get a job?  There will be ensuing liability issues, public relations considerations.  Then there is the terrible reality that someone was injured in  he workplace.  Negligent hiring convictions can be costly to employers.  It has been reported that one particular  negligent hiring case was settled for more than $40 million.  That could put a lot of companies out of business.

There are other concerns and perhaps even greater expenses.  by not checking the box, applicants are compelling employers to either take them at their word or conduct more extensive background check in order to be certain the candidate isn't lying about prior convictions, especially violent convictions and sex crimes.   If the employer misses a criminal records search and the now-employee acts out in the workplace, the employer may face liability issues and charges for negligent hiring.

II realize in this economy people are desperate for jobs. Those with criminal records are no exception.  Like anyone else, they need to feed their families.  Those who have genuinely paid for their mistakes and want to work their way back into society do need that second chance.  Otherwise, as some claim, they will surely end up back in jail.  Recidivism.

 But then in this tough economy when many employers have their pick of talented candidates who are out of work for a variety of reasons.  These may be candidates whose records aren't tarnished by criminal convictions.  Not there are guarantees that someone without a criminal record wouldn't act out int he workplace.   But shouldn't the employer be able to decide who is the best candidate?  Who is the best fit for his working environment and the position at hand?   What's fair?  It's a tough call.

According to the article inthe LA Times, "A recent San Francisco Chronicle editorial called the new proposed ordinance "eye-rolling" and an example of "the fuzzy-headed thinking that makes San Francisco politics such rich fodder for late-night comedy and cable commentators." The San Francisco Apartment Assn. said it would unduly burden private property owners and open them up to potential lawsuits."

Good points.  But then, depending how you count it,  thirty percent of our working population have criminal records.  Which, by the way, is pretty startling all to itself.thirty percent.  You keep them out of work and there are millions of people who need to commit crimes to eat.   Some crazy stuff.

The article also noted that the Chamber of Commerce has yet to weigh in on the subject.  There is some  with elements in the new ordinance where  rejected candidates can appeal  on the grounds of discrimination due to criminal records.   Another part of the law dictates that the crimes committed in the past weren't relevant to the job for which the candidate was applying.  But as I noted earlier, how do you calibrate sex offenses in that paradigm? Or if you hire a candidate to, say, work in inventory and that candidate has a history of theft, how do you determine whether he can rejected for fear he will pilfer goods in the warehouse?

As one leader of a real estate group was quoted in the article, "They're putting a burden on private individuals like myself or you to make a determination on someone's criminal background," said Janan New, executive director of the San Francisco Apartment Assn. "Having us determine evidence of rehabilitation through an interview with a tenant? I have no background in parole. How are we going to do that?"

Personally, I believe this law may cause more employers to have pause.  For some, it may be a much shorter interview if the human resources person determines that she best err on the side of caution and not move further into the process with someone she believes has a criminal record.  Of course, this would be pure conjecture on the part of the Human Resources person.   It may not even be an accurate assessment.   And it is certainly not fair.  

But reality what it is, and life isn't fair.  Certain candidates, whether they have a record or not, in the name of caution and fear of liability issues, may be rejected out of hand.   I can't say this for sure, but it would seem this would be part of the trend.

At the end of the day there are certain characteristics that should never be challenged because they are discriminatory.   People's age, ethnicity, sexual preferences, etc, are what they are and through no choice of their own.  It is not like we sit inside the womb picking the patterns and colors for our brains and bodies we will wear when we emerge into the world.  We are what we are.

But criminal offense is an act of volition.   One born in the underclass under severe circumstances may surely have fewer options and may be more prone to commit a crime.   But all excuses and sociological reasons notwithstanding, at the end of the day they did in fact commit that crime.  It was not  an arbitrary choice of nature, but an act of their own volition or lack of it.

Many people have committed crimes and then gone on to clean up their act and live decent lives.  Whe have had numerous people call us, asking if they did something stupid years ago, will it come back to haunt them.   One dumb criminal act, and since then they have turned it around and became productive individuals.  Just about everyone who has called our office did not commit a violent crime. But they are fearful that one act will prevent them from the new job they are seek.  Hence the call.  Run their background check and see if the offense still comes up in the criminal records search.  

Is it fair that job applicants should be prevented from working on the basis of a distant criminal record? Or something they did that was stupid yet circumstantial in the past few years?  One case I remember in particular is the poor guy who got into a fight with his brother over a girl whom they both were vying for.   His mother, I am not kidding here, called the police on him.

The police took him to jail, and he was convicted of and sentenced to assault and some other stuff.  A violent crime when you first read it.  His brother ended up with the girl and he ended up with a criminal record, which plagued him for years.   To digress, I asked if years later he was sorry he didn't get the girl.   He told me her beauty queen appeal was a distant thing of the past.  Anyway...

There are many stories in the naked city.  Just that some are dressed up differently than others.  Some are obvious and some are nuanced with extenuating circumstances and criminal episodes that border on the comedic  surreal.   It's not a one stop one size fits all anymore.

If asked if I would hire a convicted felon, honestly, I would consider the crimes.   Certain things, sex crimes, etc, would turn me off immediately.   But, overall, yes I would hire someone who was trying to put their life back in order.    But then that's me.



Views: 225

Comment by Jesse Fernandez on August 2, 2011 at 11:28am
Interesting post. I think there are many variables to consider; for instance, regardless of the check box on the application, people still have to pass background checks (e.g. finger printing). In the age of social media and data mining, background checks go on without the applicant even being aware, which I think is a serious privacy issue in the internet age. An employer can decide not to hire you simply due to a picture they found on you on facebook that someone else posted! I agree, the offense must be considered, and most people deserve a second chance.
Comment by Louis Bina on August 2, 2011 at 12:41pm
Good article Gordon. This falls in line with my recent post about credit checks in pre-employment screening. Can anyone ever really escape a criminal record or, in my article, a poor financial history? I know of recruiting agencies that work exclusively with convicted felons because they need an advocate. Far too often it doesn't even matter what the crime was, the details of the trial, anything. If there was an arrest you're out of luck. The other question though, is; Does this end up making hiring managers waste time on applicants that cannot be considered due to the nature of their crime?
Comment by Gordon Basichis on August 2, 2011 at 1:14pm
Thanks Louis.  Another concern is if there are stricter measures, and an HR manager "suspects" the candidate may have a record, would the candidate be ruled out as a measure to err on the side of caution?  They would then give the interview short shrift and move on to the next candidate.   I am not saying this would happen but if this did become common practice it would nullify the rulings designed to alleviate discrimination.  Ah, them dilemmas and stuff.
Comment by Sandra McCartt on August 2, 2011 at 1:54pm

Sort of in line with this post i just heard a funny story.  I guess it's funny i thought it was.  A client of mine sent a person to be drug tested to complete a hire.  The person was asked at the drug test lab for identification.  They didn't have any ID.  The lab policy is no ID no drug test for obvious reasons.  The person finally pulled up a pants leg and asked if the lab could use the serial number off the ankle bracelet as an ID. 

It was not a hire.

Comment by Gordon Basichis on August 2, 2011 at 2:29pm
Sandra, that's pretty damn funny.
Comment by Sandra McCartt on August 2, 2011 at 4:12pm
Right up there with the candidate who was so nervous about her drug test that she "borrowed" a valium from a friend the night before the drug test.  It was also a medical lab candidate.
Comment by Gordon Basichis on August 2, 2011 at 4:34pm

Much of these anecdotes are recorded under the general category, "Good help is hard to find."  And smart help...well....

We had one client whose candidate wondered why the Medical Review Officer hadn't contacted her so she can explain her story as to why she was positive on her drug test.  "It just wasn't fair."   She had tested more than 25 times the allowable limit of cocaine.   

Comment by Sandra McCartt on August 2, 2011 at 6:11pm
Sounds like a fair amount of coke to me.  Those all go under the "What were you thinking..oh never mind". category.
Comment by Gordon Basichis on August 2, 2011 at 6:32pm
There are mountains that were smaller than her coke intake.


You need to be a member of RecruitingBlogs to add comments!

Join RecruitingBlogs


All the recruiting news you see here, delivered straight to your inbox.

Just enter your e-mail address below


RecruitingBlogs on Twitter

© 2021   All Rights Reserved   Powered by

Badges  |  Report an Issue  |  Privacy Policy  |  Terms of Service