The laws concerning job candidates with criminal records are something every organization needs to be aware of.

We talked about the rationale for hiring job candidates with criminal records in Part 1 of this series on job candidates who have criminal records. Now let's talk about the laws governing it. As noted before, the reason various governmental bodies — federal, state and local — intervene is that they want to protect the civil rights of classes of people more likely to be unfairly harmed by questions about a criminal past. One of the most important federal documents in this area is the Equal Employment Opportunity Commission's (EEOC) Criminal History Guidance, issued in 2012. The guidance says in short that an employer needs to have a legitimate business need to learn of an applicant's criminal history, that the information would be job-related and consistent with business necessity.

Complying With EEOC Requirements

The EEOC is particularly critical of using arrest records in deciding to hire a candidate. Arrests often do not result in convictions, and certain groups are arrested disproportionately compared to others. Lawyers working in the field recommend that employers instruct vendors checking criminal backgrounds to generally not provide arrest records. The EEOC will presume that the employer considered such records in hiring decisions, which can lead to fines, penalties and lawsuits, according to remarks by Pamela Devata, Labor and Employment Partner at Seyfarth Shaw, during a panel discussion at the Midwestern Regional Summit of Fair Hiring in Chicago.

It's a different matter if the job candidate has been convicted of a crime. In this case, there are a variety of factors that have to be weighed to stay on the right side of the law. But some overall principles emerge. One of the key ones: Most employers will only want to ask job candidates with criminal records about a criminal conviction after a job interview or once a conditional offer of employment has been made. According to Devata, if the answer is yes, employers need to consider the circumstances surrounding the conviction, including:

  • The nature and gravity of the offense, such as whether it was a misdemeanor or felony, a crime against a person or property
  • The date of the crime and/or release date from incarceration, plus any evidence of rehabilitation
  • The relatedness of the offense to the job duties

Ideally, the employer would have a form that encourages the applicant to explain the circumstances of the crime and efforts the applicant has made to become a person the employer can trust.

What happens if you ask a job candidate with a criminal record if they've ever been convicted of a crime and they deny it? If the crime was not serious, not recent and not relevant to their job duties, are you compelled to hire them under the EEOC rules? No. As Devata puts it, "You do not have to hire people who are liars."

The Hidden Risk of the Fair Credit Reporting Act

Although it doesn't sound like it, this federal act has implications for hiring job candidates with criminal records. When an employer runs a background check on a candidate, the check may turn up records of arrests or convictions. If that happens and the employer decides not to hire a candidate based on it, the employer must inform the candidate that the decision was influenced by the report and give the rejected applicant a chance to review the background report and correct anything that is wrong in it, according to the Federal Trade Commission. Also note that states have their own laws on the matter, some of which are more stringent than the federal requirements.

The "Ban the Box" Movement

A related legal development is an initiative called "Ban the Box," the umbrella term for social and legal efforts to prohibit employers from asking on application forms if a job candidate has a criminal record. As of April 2017, 29 states and some 150 counties and municipalities had laws that codified the prohibition to some extent, according to the National Employment Law Project (NELP). Altogether, two-thirds of the U.S. population lives in a jurisdiction with Ban the Box rules and regulations, according to NELP.

There are six states that go beyond Ban the Box to providing economic incentives to employers to hire those with criminal records, according to the National H.I.R.E. Network: California, Illinois, Iowa, Louisiana, Maryland and Texas allow tax deductions on the employer's income taxes for such hires. California and Iowa provide the most generous of these tax benefits. The former allows these tax deductions over five years of employment, dropping from 50 percent of qualified wages for the first year to 10 percent of qualified wages in the last year. Iowa allows a deduction of 65 percent of the first year of employment up to $20,000.

Check With Your Attorney

Please note that this is only an overview and should not be taken as legal advice. You should talk to your organization's employment attorney if you need legal counseling on any aspect of your hiring process.

To read more in the series: Job Candidates With Criminal Records: Part 1: Why they May be Great Candidates

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Tags: talent Diversity Corporate Social Responsibility Compliance