Hundreds of thousands of prisoners are released each year and attempt to reintegrate into society. Not only are they expected to find housing, but they also need a job to afford the cost of living when prospects are especially slim. According to PrisonPolicy.org, formerly incarcerated people face unemployment at a rate nearly five times higher than the general U.S. population. Even when employers say they are willing to hire, those with criminal records only get called back half the time. Unfortunately, these struggles can lead to depression, addiction and more crime.
Why should employers give jobs to applicants with criminal records? Research shows that hiring the formerly incarcerated benefits employers and the general public.
Ban The Box & Fair Chance Laws
As of the end of September, there are 36 states and 150 cities and counties that have adopted fair hiring legislation such as Ban the Box laws. These laws dictate that employers cannot ask about an applicant's criminal background until extending a conditional offer of employment. The intent of these laws is to reduce discrimination on those with criminal records, but also those who face discrimination based on race. The pandemic has lead to some states to re-examine or clarify these laws.
Recently, California employers are allowing candidates to start their jobs while waiting for results of their background check (due to slow turnaround from closed courts affected by the pandemic). In response, the California Department of Fair Employment and Housing (DFEH) clarified California's Fair Chance Act to specify that an applicant is still just that, even if they've already begun working before their criminal history has been reviewed. The DFEH also warns against employers who discriminate when hiring, even after reviewing the job-related consideration of criminal history.
Equal Employment and Individual Assessment
The EEOC also provides guidance when assessing a criminal background check. The Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act provides considerations for employers who've found a criminal record on a potential employee. The employer must:
- Evaluate the nature and gravity of the crime
- Evaluate the time lapsed since the conviction of the crime or completion of the sentence
- Evaluate whether the crime affects the nature of the job for which the applicant is being considered
Even after these evaluations, the employer must individually assess the applicant's record against their own policies. A Background Check Decision Matrix will help with this assessment, protecting the employee from discrimination and protecting the employer from EEOC litigation.
Why Give Applicants with Criminal Records a Job?
At this point, three-fourths of the country lives somewhere that prohibits asking about criminal history on an application. The EEOC provides guidance to help employers make smart decisions, lowering the risk of negligent hiring liability. If an applicant with a criminal record is applying for a job, it's because they want to work. When hired, they are hard-working, loyal, skilled and tend to stay longer, reducing recruiting and training costs. A second chance not only benefits the candidate and the employer, but the general public as well, reducing homelessness and future incarceration rates.