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Should You Hire Workers With Criminal Backgrounds?

Published on October 31st, 2019

Back in 2012, facing extreme reluctance from employers, the Equal Opportunity Employment Commission (“EEOC”) published guidance on whether and when to hire workers with criminal backgrounds who had done their time and were, hopefully, ready to be productive citizens and workers.

But employer reluctance to consider hiring ex-cons has waned in the past seven years as the economy has improved, the population has continued to age, and at least in Illinois, the population size has fallen due to people leaving for faster-growing states and fewer immigrants coming into the state.  Meantime, more than 27,000 people got out of state prisons and more than 50,000 were released from Cook County Jail in 2018, and the National Employment Law Project estimates that 42 percent of Illinoisans have either criminal records or at least histories of arrest, which can include not only those found not guilty but those never formally charged in the first place.

It’s become somewhat easier for ex-cons (“the formerly incarcerated”) since the state legislature in 2014 prevented employers from asking on applications or early in the process about criminal history, making Illinois one of 23 states to take this step; private companies like Target had already done so.   Then in 2016 the state changed licensing laws to make more than 100 occupations more accessible to those with criminal records, including areas like healthcare, accounting and real estate, while expanding the types of convictions that can be sealed—and therefore invisible.

Next, in 2017, the state passed a law expanding the types of convictions that can be sealed, after which petitions jumped to 66,000 for the year ending August 2018, from 10,000 the year prior.   And last December, Congress passed the First Step Act, which gives judges more latitude in sentencing nonviolent offenders and strengthens rehabilitation programs for the formerly incarcerated.

That doesn’t mean employers are – or should be – turning a blind eye to applicants’ troubling pasts.  Many prospective employers remain reluctant due to concerns about negligent hiring lawsuits.  And hiring those with criminal records is not necessarily the right answer for every employer or in every situation.  But particularly if you are facing a shallow labor pool, and depending upon the type of crime, it’s something to consider.

The Society of Human Resource Management has encouraged businesses to do so through the Getting Talent Back to Work initiative, a pledge by employers not to “re-sentence” the formerly incarcerated but rather to pledge to give them the same opportunities as everybody else.

The first thing to know is that drug crimes are the most common and potentially least concerning conviction found on background checks, depending on how long ago the crime was committed, whether it involved possession or trafficking, and whether it involved marijuana or so-called “hard drugs.”  And then how often the applicant has been charged over the years: one conviction for driving while impaired (DWI) might not be a concern, for example, multiple incidents portend a significant substance abuse issue.

Whether a conviction is a misdemeanor or a felony is not necessarily a meaningful distinction because there is significant inconsistency in how drug crimes are charged and prosecuted or plea-bargained. But quite significant, on the other hand, is the type of job for which the applicant is interviewing—if they’re going to be operating heavy machinery, say, vis-à-vis typing at a computer.

Naturally, violent crime is a greater concern overall, although recidivism rates are quite low.  The main thing to consider in weighing these types of applicants is the length of time since the crime occurred, and of course the longer, the better.  But another consideration is that some employers, especially those with a majority female workforce, understandably feel they simply cannot hire those convicted of crimes against women.

Lastly, property crimes and those involving dishonesty of one kind or another might seem like less of a concern than violent crimes, however, they are much more likely to be repeat crimes. Burglary, larceny, motor vehicle theft and fraud or forgery collectively have a recidivism rate of more than 80 percent over five years.

Accordingly, such employees should undergo thorough background checks and need to demonstrate they have reformed themselves over a long period of time before they can be trusted to handle money or otherwise have access to the employer’s finances.

Hiring the formerly incarcerated has worked out well for Presence Health, for example, which has brought in at least a couple dozen employees in areas like housekeeping, food service, transportation and, occasionally, as licensed healthcare workers.  This has helped the company retain employees in what traditionally have been high turnover positions.

To learn more about the person’s conviction and, more importantly from the hiring perspective, their current mindset about it, employers can ask open-ended questions – what happened, how have you changed since then, whom did you hurt, and how have you tried to make amends for it?  Those answers will be crucial to decision-making going forward.

Finally, in addition to filling positions that might be difficult to nail down in the current economy, employers who hire and retain the former felons can claim the Federal Work Opportunity Tax Credit.  This provides 25 percent of the person’s first-year wages for those who work up to 120 hours, and 40 percent of first-year wages for those who work at least 400 hours.  The program is hardly a secret: employers claim about $1 billion total each year.  So there are tax benefits to hiring the formerly incarcerated.

There is some risk, but in a tight labor market, this is one alternative available to employers who should look at this as an opportunity with open eyes.

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