Employer No Hire Polices Because of Criminal Pasts

Apparently certain employers discriminate in their hiring practices. According to a recent report in the National Employment Law Project, or NELP, their survey of Cragi's Lit reveals that no hire policies are routine. According to their Press Release, NELP posted the following--

"The new report highlights the widespread and illegal use of blanket no-hire policies by providing numerous examples of online job ads posted on Craig's List, including some by major corporations, that effectively bar significant portions of the U.S. population from work opportunities. Because of their blunt impact and extreme overreach, these blanket no-hire policies have become the subject of increasing litigation, attracting heightened scrutiny from the courts and concerned policymakers. At the same time, 92 percent of employers conduct criminal background checks, according to a 2010 Society for Human Resources Management survey.

The fast-growing use of criminal background checks casts an extraordinarily wide net, potentially ensnaring millions of Americans who have an arrest or other record that shows up in a routine check,” said Christine Owens, executive director of the National Employment Law Project. “These background checks are supposed to promote safety in the workplace, but many employers have gone way overboard, refusing to even consider highly qualified applicants just because of an old arrest or conviction. They’re not even bothering to ask what the arrest or conviction was for, how far in the past it was, whether it’s in any way related to the job, or what the person has done with his or her life since,” said Owens.

I found this alarming. I also found this odd. For one thing the Fair Credit Reporting Act (FCRA) and various labor laws, both state and federal, place limitations on the length of time conviction records can be considered for employment purposes. Not only is the length of time a factor, but the actual crime can be a factors as well. Misdemeanors are given more leniencies in some states as well as first offender.

That being said, most of our clients often do not take into consideration old criminal records. At least they don't rule an employment applicant ineligible only because of a criminal past. Of course, violent felonies can give employers pause, but misdemeanors and infractions don't seem to carry the gravitas that this report would intimate. Most employers that we service are far more concerned about skill sets and employee reliability than distant infractions and felonies. In certain industries, trucking, industrial, criminal records are fairly common and, frankly, certain employers wouldn't have a workforce if they excluded job applicants with past convictions.

As I noted, violent crimes are another matter. Employers when conducting employment screening will be much more discerning about violent crimes in an employment candidate'sbackground check. The fear of course is not so much what the employee did in the past, but whether or not he would act out on the job. Workplace violence is always a major consideration. That being said, employees with violent criminal histories may not be the ones to act out on the job. In fact, in some cases they become models of restraint, realizing any violent action, plus their past history would most definitely cause them to lose their jobs.

In fairness to the NELP report, it does list prominent companies who advertise positions on Craig's List and specify that those with criminal records need not apply. Having no idea what the policies of these companies are, it's not my place to give an opinion of their practices. I do know that in most cases criminal records are neither violent or extensive. They are often modest infractions.

I have known a few people who when younger got themselves in trouble when they were younger and then straightened out their lives and went on to become reputable employees. Some of these people became professionals, or key managers, professors and deans at universities. It is hardly above the pale that someone messes up at one point and then turns around his life. So denying people second chances, or denying them employment, doesn't make sense.

It is not a perfect world, after all. In case you haven't noticed.

As one client said. .."Hey, he was the best man for the job. Had the skill sets I needed. Because he did something fifteen years ago, what do I care?"

Comment by Denise Tinsley on April 18, 2011 at 12:54pm: Good article. I know quite a people with drug related felonies from the past that are now solid citizens. Getting a new job is made extra stressful because sometimes the record comes back in the check and sometimes it does not. Do they mention it ahead of time and get ruled out for the job or take the chance that it does not show up? One person has a record over 20 years old. I understand that if some commits a crime they should be punished but I think there is a time to move past it if they have proven that they have cleaned up their act. I think much of this is because if something went wrong the company doing the hiring would be sued for hiring someone with a record.

Comment by Valentino Martinez on May 12, 2011 at 2:21pm: If employers value a diverse employee population that is reflective of society at large, then it must also include persons with the stigma of "ex-felon" on their employment application--and consider them based on their qualifications and potential to be viable additions to their workforce.

An "ex-felon" by definition is a person who has served their time, as adjudicated by the court(s), and has been approved to be released back into mainstream society. Blatantly denying ex-felons reasonable consideration for employment simply because they are ex-felons is discrimination of the worst kind. It is tantamount to issuing them an additional sentence of "persona non grata" and permanently relegating them to the status of hardcore unemployable--which in turn positions them to return to the only place that will welcome them with open arms--the criminal underground.

I speak from experience when I say, "Those ex-felons who are making a concerted effort to walk the straight and narrow path deserve the right to return to society by returning to their families, find viable work--in order to pick up the pieces, and to become law abiding, contributing members of society. Many who are given a chance to re-engage often end-up as the hardest working, most loyal employees an employer ever had." My experience is from having directed a rehabilitation program many years ago in California--that counseled, trained and job placed ex-felons into Fortune 500 companies and smaller employers who valued their hires so much that they came back asking for more.

I am a realist and will be the first to say there are career criminals who are predatory and must be isolated from society. But I also know that rehabilitation does work when it is approached with common sense and broad support from all who can make it work, e.g, family, friends, employers, religious community, parole supervision--and the ex-felon who is dedicated to stay out of lock-up by being productive.

Is it any wonder why there continues to be high recidivism in any state in the country if ex-felons are told don't bother to apply for work here because we are honoring the "absolutely do not" include ex-felons as part of diverse group regardless of the fact that the majority of ex-felons are African American and Hispanic.

Diversity Training should include sensitizing employers & employees about the value of helping individuals, to include ex-felons, to help themselves. Unfortunately, this terrible economy magnifies the challenge faced by viable ex-felons who seek gainful employment.

Comment by Gordon Basichis on May 12, 2011 at 5:45pm: Nice comments, Valentino. Very thoughtful.

Comment by Sandra McCartt on May 12, 2011 at 6:25pm: Many companies take the position that will not hire a person who has a felony conviction.

When asked to consider that the felony was committed when the candidate was 21 years old, he has had one job for the past 11 years. The felony charge was taking a firearm across a state line for sale and what he had done was to take two shotguns to his sister's boyfriend in another state for him to sell to a friend. The response was, "We can not be judge and jury to decide if one felony is worse than another felony, if we have a policy of not hiring anyone with a felony conviction that is it."

It is what it is. I could understand that it is not up to HR to sit around and decide if one felony is worse than another which i could see might certainly put them is a situation of discrimination based on the personal opinion of people who might think one act was worse than another. Thus a blanket policy of no hire of convicted felons.

Some things are just not "right" but what can you do if it is what it is?

Comment by Gordon Basichis on May 12, 2011 at 6:56pm: Sandra, as an employment screening service we run iinto similarr situations where for whatever reason the employer will not hire convicted felons. And true, "it is what it is." At the end of the day it's the employer's call.

Comment by Valentino Martinez on May 12, 2011 at 7:20pm: Thanks, Gordon--

I noticed your concern for safety, fairness and legal liabilities relative to workplace issues in this and other blog posts. Employer and employee relations continue to be complex with indications that they have broader societal ramifications than first thought.

Comment by C. B. Stalling!! on May 12, 2011 at 9:42pm: It is what it is, I agree with Sandra

Comment by Valentino Martinez on May 13, 2011 at 1:34pm: Isn't accepting some things that are not "right" because "they are what they are" a form of cop out?

Sandra, you ask: "Some things are just not "right" but what can you do if it is what it is?" The answer can be:

You can sit idly by...

You can ignore it...

You can disagree with it...

You challenge it...

You can vote against it...

You can certainly not support an is what it is if it's not "right".

Smoking in NY was an "it is what it is" situation until it wasn't. Now you cannot smoke in enclosed workplaces, restaurants, bars or on construction sites in NY--who would have thought?

ENRON was an "it is what it is" until a whistleblower blew them down.

Slavery was an "it is what it is" until it was challenged, voted against and brought down because it wasn't right.

So "it is what it is" will reign as long as it has broad good value...

Comment by Sandra McCartt on May 13, 2011 at 6:41pm: Someone else may think that the way i run my company is not right but that is the way i run it. It's my choice as long as i don't break the law . I respect the right of anyone else to run their business. If someone disagrees with how i run my business they can challenge it and i will tell them to either buy my business, run it the way they want to or leave me the hell alone. It's my railroad. I dont' have a vote on how anyone else runs their business and they don't have a vote on how i run mine. Unless i own stock or am in a management or policy making position with theirs or they with mine.

Let"s don't equate illegal and fraudulent criminal activity with company policy not to hire a convicted criminal unless that policy is illegal or fraudulent. I am not going to tell someone they are doing something illegal when they aren't.

Slavery had nothing to do with the actions of African American people. Commission of a felony required illegal acts on the part of a person who in most cases knew that what they were doing was against the law and made a choice to break the law. So let's not confuse oppression of a whole race of people with a group of people who made a choice in most cases to do something that either hurt or damaged someone else along with themselves.

I do think that there should be recourse for people who have done the crime and done the time to have a judicial review of their individual situation with the courts having the ability to expunge a record for a myrid of reasons. But let's not forget that if they had follwed the rules in the first place they would not be in that situation. There is always a choice unless one is insane or incapacitated mentally or emotionlly to an extreme degree.

I think everybody in New York should be able to smoke anyplace they please but at this point it is what it is and it didn't used to be. I don't like it when anybody trys to control anybody else's behavior unless of course they are breaking the law then i want that behavior controlled.

Cop out? No just acceptance of the rights of others to run their business they way they think is best whether i like it or not.

Comment by Valentino Martinez on May 14, 2011 at 12:38am: Sandra,

My comment was made out of context with the subject of this discussion--and I should have pointed that out from the start. It was meant as a stand alone statement in response to what I considered a stand alone statement. My comment was not meant to tie into this discussion's subject of "Employer No Hire Policies Because of Criminal Pasts". So I apologize for possibly getting your dander-up unnecessarily.

To clarify, you said, "Some things are just not "right" but what can you do if it is what it is?"

I keyed in on your admittance that some things are not "right", and responded to your question, "...but what can you do if it is what it is?" Also, the, "it is what it is" statement rankled me because it sounds like some things are above reproach—that people have long ago surrendered to them so why get excited, e.g., "might makes right"; or "my way or the highway". I tend to stand with the underdog, the disadvantaged when “it is what is” is being foisted on people, places or critters.

So, by asking: "Isn't accepting some things that are not "right" because "they are what they are" a form of cop out?"—was my dig in a universal sense of good vs. not good--I was not challenging the way you do business.

The condition of slavery is and was wrong on so many levels but endured as an acceptable condition up to a point because it seemed to be isolated in states that embraced it. So since it was legal, acceptable and fruitful--who could challenge such an “it is what it is” conundrum? The inhumanity of it was its eventual downfall and it took a Civil War to sort it out.

ENRON’s senior management, in partnership with Anderson Consulting, were cooking the books and were turned in by an internal whistleblower—who could have gone looked the other way as others clearly did to maintain the status quo. And smoking has endured many challenges because a person’s right to smoke “is what it is”, but not if it endangers the health of non-smokers—hence smoking bans are finally gaining ground.

All I’m saying is just because a thing or condition(it) is what it is doesn’t necessarily give it a pass as acceptable by all who are affected by it. Nor should it continue in perpetuity simply because it is what it is. For some dumb reason I tend to side with the Davids against the Goliaths—as some conditions appear to be. I did go off track, and off subject—but that is the tangent I followed when the phrase was presented. Again, no personal implications were intended and I apologize for offending you.