Can Employers Automatically Exclude Job Applicants with Criminal Records?

By Lester Rosen, President of ESR

From the ESR Mail Box

Question:

Can an employer automatically exclude an applicant with a felony or criminal record? What about automated processes that use a system to identify applicants with a criminal record?

Answer:

The one thing that an employer can be advised with some certainty is that any sort of automatic policy based upon a person’s status as an ex-offender is very likely to expose a firm to a federal or state Equal Employment Opportunity Commission (EEOC) issue.  That is why nearly every employment application not only asks about past criminal records but also has a disclaimer that a criminal record will not be used automatically.  The rule is clear that an employer needs a “business justification” before excluding someone based upon a past criminal record.  A blanket policy does not allow consideration of the individual, taking into account factors such as the nature and gravity of the past offense, the relevance to the job and how much time has passed.  In fact, in 2009, New York passed a law that requires an employer to review a longer list of factors related to a past crimes.  This is why ESR advises clients to approach any sot of automated software processes with extremes caution.

The idea is that an applicant should not be the subject of prejudice based on their status as opposed to who they are as a person. After all, the root of the word prejudice is to pre-judge.  Of course, that does not mean a sex offender should be supervising a playground or an embezzler handling money, but the bottom-line is that there is a job for everyone, although not everyone is entitle to every job.  As a society, we cannot afford to build more prisons then schools or hospital, so there is a big need to get past offenders employed. In fact, nationally, it costs about $30,000 a year to incarcerate a person.  If a person leaves jail or prison and cannot get a job, there is a high likelihood of recidivism and more costs to society. 

On the other hand, they need to be employed in an appropriate job, to avoid harm to the firm or the public and to avoid lawsuits for negligent hiring.  There is no perfect solution, but as with many things associated with HR, it is the process that is critical.  The process should certainly allow for individual consideration of each applicant on their merits as it relates to a job.  Of course, if a person has lied on tier application and was dishonest about past criminal history then the employer may rightly be concerned about the lack of honesty on the application especially if the application clearly indicates hat any material omission or misinformation is grounds to terminate the hiring process or employment, no matter when discovered.

There are numerous ESR blogs on the subject that can assist employers in navigating these issues:

For more information about background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com.

Sources:

http://www.esrcheck.com/wordpress/2010/01/04/2010-trend-on-increased-focus-on-whether-credit-reports-and-criminal-records-are-discriminatory/

http://www.esrcheck.com/wordpress/2010/04/12/discrimination-lawsuit-shows-importance-of-employer-policy-on-the-use-of-criminal-records-during-background-checks/

 http://www.esrcheck.com/wordpress/2010/01/07/the-unfair-use-of-credit-reports-and-criminal-records-and-the-eeoc-e-race-initiative/