Hiring Employees With A Criminal Record: A Full Guide

by Sandra Jenkins

Diversity and inclusion are among the strongest trends in the recruitment agency; talents and patrons alike are increasingly demanding diversity in the company.

Race might be the first thing that pops into your mind, but being more diverse doesn’t just mean creating an office of different-colored people. It’s all about a diversity of backgrounds. Age, gender and sexuality, religion – and yes, even a background of prior convictions.

Understandably, employers are hesitant to bring convicted felons into the fold. Not just because of the obvious implications but also because navigating the recruitment process of people with criminal records can be a minefield.

Good thing we’re here. This complete guide will discuss everything you need to know and consider when hiring an individual with a prior conviction.

Why You Should Hire People With Criminal Records

In general, employers don’t set out to hire an employee with a criminal record – understandably so. Under the almost-purely meritocratic paradigm of capitalism, we don’t have any way of knowing or vouching for an employee’s character, so we look at their backgrounds.

This way, we tend to favor employees with backgrounds that seem to indicate good characters, such as good grades and relevant experience. It’s also here that we judge a previous convict’s reliability for the job.

This all makes sense– but we’re here to tell you that hiring individuals with criminal records are not at all fearsome. And done right, it might even be one of the best decisions you’ve made.

Here are a couple of examples of the benefits an employer can expect from hiring candidates with criminal cases.

You’re Tapping An Undiscovered High-quality Group.

Despite the current push for diversity in the workplace, many employers still avoid candidates with a checkered past. However, it’s exactly for this reason that sourcing out an adequate candidate in this category can become so profitable.

A 2018 article from the National Conference of State Legislatures revealed that approximately one in three American adults have a criminal record. As early as 2014, this barrier to employment already contributed to a loss of about $78 billion to the American economy.

This just shows that most employers are missing out on this great resource – which means less overall competition. You’re sure to be able to get your pick from this group, at least when compared to the mainstream job market.

More than that, these individuals also have plenty of attractive qualities, such as:

  • They are loyal and dedicated. Understandably, employees with this background tend to stay loyal to the employers who hired them, lowering your turnover rate.
  • They are highly motivated and ambitious. Many people with criminal backgrounds are eager to prove themselves and catch up on the life they missed because of their convictions. Thus, money spent on training and upskilling employees with prior convictions never goes to waste.
  • They are skilled. Many candidates of this type undergo different programs and services to reintegrate them into society.

The Government Will Give You Tax Credits

Because of the previously mentioned economic gain, employing individuals with prior criminal records is a relevant government goal. Thus, they are willing to give tax credits to organizations that successfully hire this demographic.

There are several government programs for this cause, mainly the Work Opportunity Tax Credit and the Federal Bonding Program. Here’s a summary of what they are and what you can get.

  • Work Opportunity Tax Credit. You can get a maximum of $2,400 tax credit for new hires in specific demographics, including individuals with criminal records.
  • Federal Bonding Program. This government program gives your business six months of free insurance with a $25,000 limit that covers any loss of asset due to employee fraud, specifically from a newly-hired justice-impacted employee.

It Improves Your Employer Brand

Your employer brand is a core part of today’s recruiting landscape; customers and talents alike are more aware and caring about the reputation of the companies they patronize. And they’re more vocal about it too, easy as it is to talk about anything on social media.

Hiring a justice-impacted individual is usually seen as a compassionate move, largely because most employees avoid doing so. This will improve your reputation among your customers and employees.

It Gives People in Need a Second Chance

Lastly, there’s still something to be said about the moral argument for hiring people with spotty pasts.

While it’s true that a colorful background will immediately give us a certain impression, the right thing to do is for us to give equal opportunity to everyone involved. Only in gathering more information about the candidate should you form any conclusions that affect the hiring outcome.

More than that, if a candidate passes all your standards, there’s really no reason not to hire them just because of their history. After all, everyone can become a criminal, no matter how small the risk – yet that doesn’t change our willingness to hire other random strangers to work for us.

Thus, we must remember that their records don’t determine who they are, and in the first place, it’s very likely that they’re not anymore the same people that did the crime.

After all, if you won’t hire them, who will?

Employment Laws You Should Know

Hiring justice-impacted individuals can be trickier than usual, so you need to be familiar with all the legal implications of this action.

Fortunately, there’s nothing too complicated about it; you just have to take note of a couple of laws. You should call your lawyer for everything else that you don’t understand.

NYC Fair Chance Act or “Ban the Box”

The Ban the Box law, helps justice-impacted applicants have more chances during the application process.

This law ensures this by banning any questions asking an applicant about their criminal background before the final interview. You may still ask the applicant whether they have prior convictions or not, but only during that stage.

This way, there are more chances for justice-impacted individuals to show off their qualifications and experience, instead of just being summarily dismissed because of their background.

As an employer, you have to keep in mind a couple of things to comply with the Ban the Box law.

  • Check the laws in your city about the exact requirements and implementation of the NYC Fair Chance Act.
  • Make sure that there are no exclusionary languages on the job offer or during any initial interview stage.
  • Train your recruitment teams and hiring managers about relevant Ban the Box guidelines and brief them on local laws.

NYS Correction Law Article 23-A

This law puts into writing the steps that an employer must take in assessing a justice-impacted individual – similar to how any regular applicant might be treated. This makes sure that everyone is considered equally, regardless of background.

Here are the factors that the NYS Correction Law Article 23-A says that you have to assess on justice-impacted individuals.

  • Applicant qualifications. Compare the applicant’s skills and experience to the needs of the open position.
  • Impact of a criminal record. Assess whether there is a direct relationship between the open job and the candidate’s previous criminal offense.
  • Time since the last offense. Look at how long ago they had a brush with the law.
  • Age during the last offense. Take into account the candidate’s age during their crime, which may also give you significant conclusions about their state of mind.
  • The severity of the offenses. Evaluate how serious the circumstances of the offense was and how many times it happened.
  • Positive character references. Look for ways that the candidate can vouch for positive change, such as people who might speak on their behalf, letters from their community, and certificates from relevant meetings and groups.
  • Potential impact assessment. Evaluate the risks of their potential impact to the general wellbeing of other people.

Title VII: The Civil Rights Act of 1964

This federal law explicitly protects certain groups of people from discrimination in hiring and employment. Specifically, this law protects discrimination according to the following factors.

  • Race
  • Color
  • Religion
  • Gender and sexual orientation
  • Nationality
  • Background

Fair Credit Reporting Act (FCRA)

Another federal law, this act ensures that applicants can defend themselves from the results of a background check. Thus, employers must listen to the side of the employee before denying them employment because of certain things found in their background check.

To comply with the FCRA, you have to take a couple of steps.

  • Obtain written consent from the applicant to conduct the check.
  • Explicitly notify your candidate about the implications of this background check. State in writing that the results obtained will be used to make employment decisions.
  • Create a mechanism for employees to know the results of their background checks so that they may file any challenges, proof of healthy change, etc.
  • Only take an adverse action (removing them from the candidate pool) once every other method has sufficed.

Things to Consider When Choosing to Hire a Candidate With a Criminal History

Now you know the advantages of hiring justice-impacted applicants, as well as the laws to be aware of when you’re dealing with such a situation.

But how about when you’re actually in the process of hiring someone? Here are implementable tips to consider during the application process.

Disregard Criminal History At the Start

One of the safest things you can do to be compliant with the law is to avoid thinking about criminal history altogether – at least during the start of your application.

Laws such as Ban the Box and other local guidelines prohibit discrimination in the initial stages of the application; you can only discuss this at the final interview.

Train Early

However, keep in mind that when it comes to training hiring managers and recruiting teams, the earlier the better.

Many employers make the mistake of training only when they’ve landed in hot water, which ultimately costs them a lot of time, money, and reputation.

Thus, it’s better to train them to do the right thing from the start. Here are some tips.

  • Communicate the benefits of hiring this group
  • Brief them on local ordinances as much as you would about federal laws.
  • Ensure that you train them on inclusive, compliant recruitment methods.
  • Always include justice-impacted individuals in D&I conversations and initiatives.

Only Reject After Thorough Consideration

While you can reject someone for having a criminal past, doing so hastily can get you a nice lawsuit. There are two key Title VII points to remember when rejecting candidates with prior convictions.

  • Provide equal opportunity for everyone. Aside from the usual D&I implications, this also means that you must have the same undiscriminating treatment and due diligence for people with the same criminal records.
  • Do not use criminal screening practices that significantly disadvantage Title VII-protected groups. Especially if it doesn’t help you decide the character and qualifications of the applicant.

Conduct Your Due Diligence

There are no set rules on when you can decide that a previously-convicted employee is fit for the job vacancy that you have.

However, the main guideline is that you must do your diligence. You already do this pre or post-interview anyway, so it’s not a new concept.

There are just some new things to consider for justice-impacted individuals, such as the criteria committed to writing by the NYS Correction Law Article 23-A stated above. Here’s a refresher of what the law talks about.

  • The conviction’s relationship to the open job.
  • Impact of the criminal offense.
  • Time since the last conviction.
  • The severity of the offenses.
  • Age of the applicant during the conviction.
  • Positive character references.
  • Potential risks of relapsing.

Best Practices for Hiring Employees With a Criminal History

If you’ve reached this far, you now know the basics of making a proper evaluation of individuals with a criminal history. However, if you want to make the most of this opportunity, you need to know the best practices for recruiting these applicants.

Work With Competent Agencies

The decisions you make on an applicant’s future must be based on accurate information. Denying the post to someone based on mistakes in their background check is harmful; not just to the applicant but also to the employer.

Thus, always work with trusted professionals.

Employment Screening Companies, a specific branch of CRAs (Credit Reporting Agencies) have an “Employment Report” and “Investigative Consumer Reports” services, special credit check that lists pertinent information, including criminal records within a set length of time.

But how can you tell if the agency you’re relying on is competent? Use the following points as a guideline.

  • Should be certified by the NAPBS (National Association of Professional Background Screeners)
  • Contains all original information from the criminal justice source.
  • Uses the applicant’s complete name, and at least another personal identifier in their reporting.
  • Removes dismissed or sealed legal matters from the report.
  • Regularly updates requests with updated information about relevant cases listed in their report.

Create An Equitable Review Process

Review the protocols for your interview process to make sure that it is non-discriminatory and provides an equal level of opportunity for all applicants.

This means that you need to put special efforts into gathering all the information that you can about the justice-impacted applicant at your door. Here are a few implementable practices.

  • Ask only relevant questions. When interviewing, ask only questions that directly relate to the job. This also means that convictions that directly relate to the position they’re applying for should be discussed.
  • Always ask for consent. Make sure to obtain a written consent form about the background check and the ability to use the background check to make employment decisions. Your consent form should also include your confidentiality form.
  • Give all the chances you can. Make sure that the applicant can challenge the background check results, and they have all opportunities to explain the circumstances of their offenses.

Prepare Your Hiring Decision Makers

No matter how competent they are, hiring managers and recruitment teams won’t have all the knowledge they need to know about recruiting people with criminal pasts if you don’t implement comprehensive training.

Include creating an equitable process for hiring justice impacted individuals in your overall diversity plan. You can improve your current hiring process with the following practices.

  • Provide comprehensive implicit bias and anti-discrimination training for your HR staff.
  • Include justice-impacted individuals in your diversity and inclusion planning.
  • Conduct regular process audits to determine the effects of your policies.

Work With Development Programs

Workforce development programs are key actors in integrating justice-impacted employees to the workforce.

Coordinating with programs or agencies such as this allows you to ensure the quality of your applicants to some degree, as their involvement is an implicit vouch of trust for their clients (the applicants).

More than that, this partnership also provides other practical benefits, such as the following.

  • Subsidies and tax credits advice for hiring justice-impacted workers.
  • Skills training, equivalency courses, and other development opportunities for justice-impacted applicants.
  • Case management and monitoring.

Always Include Your Attorney in the Decision

As mentioned, hiring this group of applicants can be tricky, and it will take more steps even if you know what to do.

Many employers make the mistake of not going to their attorney for input or advice because of the added expenses, but this can prove to be a costly mistake – one that you only realize when you’re already in a dicey situation.

Your attorney will be your primary resource on the legalities of each move you make, and hiring people with a criminal history is full of legalities.

Thus, make sure to always include your attorney in these types of scenarios.

To manage expenses, can also coordinate with your legal professionals and establish a system with minimal cost of time and money.

Hiring Employees With A Criminal Record

There are many development benefits in hiring individuals with backgrounds; employees with a criminal record are exceptional workers and a largely untapped demographic. That’s not to mention tax credits and other opportunities provided by the government.

However, you can only reap these benefits if you do your due diligence and don’t cut corners on your hiring process.

Remember that the core principle in these processes is providing equal opportunity for all, regardless of background. With the information listed in this article, you’re now ready to hire employees with a criminal record.

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