With a recent survey showing nine out of ten employers conduct criminal background checks on some or all job candidates, the Equal Employment Opportunity Commission (EEOC) held a public meeting in July 2011 examining the use of arrest and conviction records by employers for criminal background checks to determine if the practice was an unfair and discriminatory hiring barrier to job seeking ex-offenders. The EEOC’s actions, coupled with the growing “Ban the Box” movement seeking to remove the criminal history question from job applications, shows that employer use of criminal records is under fire now more than ever. This is Trend Number 1 of the fifth annual ‘Employment Screening Resources (ESR) Top 10 Trends in Background Checks’ for 2012. To view the list of trends, visit http://www.esrcheck.com/ESR-Top-10-Trends-in-Background-Checks-for-2012.php.
The EEOC – the agency of the U.S. Government that enforces federal laws prohibiting employment discrimination – held a public meeting on July 26, 2011 to ‘Examine Arrest and Conviction Records as a Hiring Barrier’ and focus on the use of criminal records by employers for employment screening background checks. The meeting was designed to identify and highlight ways in which criminal records have been used appropriately and current legal standards. For more information about the meeting – including video, transcript, testimony, and bios – see ‘EEOC to Examine Arrest and Conviction Records as a Hiring Barrier’ at: http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm.
The EEOC press release ‘Striking the Balance Between Workplace Fairness and Workplace Safety’ described how the Commission was told by experts that employers refusing to hire people with arrest and conviction records even years after they have completed their sentences may cause recidivism and higher social services costs, but also that businesses face confusing and conflicting laws when using sometimes unreliable arrest and conviction records in making employment decisions. The EEOC press release about the meeting is at: http://www.eeoc.gov/eeoc/newsroom/release/7-26-11.cfm.
The meeting was an opportunity to “learn about the practical ways employers have been able to balance business concerns with the need to ensure that employment practices are fair and non-discriminatory,” according to EEOC Chair. Some in the meeting commented that removing arbitrary bars to hiring people with arrest and conviction records improves job availability and lowers crime and social costs, and also urged employers to develop and implement a “responsible business plan” and overcome “fears, biases and hiring challenges” in order to facilitate hiring people with arrest and conviction records. Also, contrary to what some believe, having an arrest or conviction record does not automatically mean that a person is unable to work for the federal government.
Others in the meeting detailed to the EEOC the confusing and often contradictory pressures on businesses when using arrest and conviction records in making employment decisions – including conflicting laws – and urged the Commission to consider these constraints on businesses, especially small businesses, in developing guidance or in deciding whether to pursue litigation in certain cases. Noting the unreliability of criminal record databases, the EEOC was warned about the proliferation of online companies offering “instant” background checks that generate reports that often contain inaccurate or incomplete information and rarely any details about criminal record information.
While it is a valid point that the proliferation of cheap and instant online databases can have a higher degree of inaccurate results, most speakers at the meeting did not distinguish between professional background screeners and cheap online data websites. A real background screening firm is obligated under the federal Fair Credit Reporting Act (FCRA) to take a number of measures to ensure accuracy. The one quick fix that would help employers and job applicants is to make the rule in California where a criminal record cannot be reported unless it has been confirmed to be accurate and up to date, which normally requires reconfirmation the courthouse, a nationwide rule.
In addition, some of the meeting’s testimony seemed to lack real world experiences where employers that are trying to keep their business running and provide jobs in a recession can ill afford to hire unsafe, unfit, dangerous or dishonest people. When someone is not actually running a business, or meeting payroll, it is easy to become a Monday morning quarterback and try to shift the solution to social ills on employers already stressed by a recession.
At a meeting in November 1985, the Commission approved a modification of its existing policy with respect to the manner in which a business necessity is established for denying an individual employment because of a conviction record. The EEOC currently has guidelines on how employers may use criminal records that makes the use of a blanket “no hire” policy that excludes job applicants with a criminal history unlawful under Title VII of the Civil Rights Act of 1964 since it discriminates against minority groups with higher rates of criminal convictions.
Employers must also show that they considered the following three factors to determine whether a decision not to hire an applicant due to a criminal conviction was justified by business necessity:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction or completion of the sentence, and;
- The nature of the job held or sought.
The EEOC continues to hold that, where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that an individual has a conviction record is unlawful under Title VII. Employers need to ensure compliance with EEOC guidelines concerning the use of criminal records when performing employment screening background checks. The EEOC guidance regarding the use of arrest and conviction records in employment is available at: http://www.eeoc.gov/policy/docs/convict1.html.
According to a 2010 survey from the Society for Human Resource Management (SHRM) – ‘Background Checking: Conducting Criminal Background Checks’ – more than nine out of ten employers polled conducted criminal background checks on some or all job candidates as part of their pre-employment screening programs. The survey from SHRM – the world’s largest Human Resources organization – found nearly three out of four organizations, 73 percent, conducted criminal background checks on all candidates while another 19 percent conducted criminal background checks on selected candidates.
As for which job categories that organizations chose to conduct criminal background checks on, the SHRM survey revealed:
- 78 percent answered job candidates for positions with fiduciary and financial responsibility (handling cash, banking, accounting, compliance, etc.).
- 68 percent answered job candidates for positions with access to highly confidential employee information (salary, benefits, medical information, etc.).
- 60 percent answered job candidates for positions with access to company property (information technology, administrative services, etc.).
- 58 percent answered job candidates for senior executive positions (CEO, CFO, etc.).
When asked what particular crime committed by a job candidate discovered during a criminal background check would be VERY influential in NOT extending a job offer:
- 95 percent answered convicted violent felony (murder, rape, etc.).
- 74 percent answered convicted non-violent felony (fraud, embezzlement, etc.).
- 58 percent answered convicted violent misdemeanor (criminal offense less serious that a felony and punishable by a fine, a jail term up to a year, or both).
The SHRM survey also revealed that the primary reasons for organizations to conduct criminal background checks was to ensure a safe work environment for employees (61 percent), to reduce legal liability for negligent hiring (55 percent) and to reduce/prevent criminal activity (39 percent).
The SHRM Poll ‘Background Checking: Conducting Criminal Background Checks’ is available at: http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalChecks.aspx.
According to a March 2011 study by the National Employment Law Project (NELP), since nearly 65 million people in the United States – more than one in four adults – are estimated to have criminal records, employers that use criminal background checks for employment to shut out job applicants with criminal records without considering how long ago the offense occurred, the nature of the offense, and whether the offense is job-related, have prevented millions of people from finding work and compromised the economy and public safety.
The NELP study – ‘65 Million “Need Not Apply” – The Case for Reforming Criminal Background Checks for Employment’ – claims telling workers with criminal records that they “need not apply” lowers public safety since studies show that providing ex-convicts the opportunity for stable employment actually lowers crime recidivism rates. Ensuring that all workers have job opportunities is critical since no economy can sustain a large and growing population of unemployable workers, especially with the cost of corrections at each level of government having increased 660 percent from 1982 to 2006.
In addition, the study states overbroad hiring restrictions run afoul of federal Fair Credit Reporting Act (FCRA) laws regulating criminal background checks for employment, and also Title VII of the Civil Rights Act of 1964 – enforced by the EEOC – that prohibits discrimination in employment based on race, gender, national origin, and other protected categories. Recent lawsuits that document civil rights and consumer protection violations have included abuses by companies revealed in a survey of online job ads posted on Craigslist that asked only for applicants with clean criminal records and no felonies.
NELP – a national advocacy organization for employment rights of lower-wage workers and the unemployed – bases the estimate of U.S. adults with criminal records on a 2008 Survey of State Criminal History Information Systems by the U.S. Bureau of Justice Statistics that found 92.3 million people with criminal records on file with states. The 92.3 million figure was reduced by 30 percent – 64.6 million – to account for individuals who may have records in multiple states and other factors and to arrive at a conservative national estimate. Since 232,458,335 people were over the age of 18 in 2009 according to the U.S. Census Bureau, the 64.6 million figure represents an estimated 27.8 percent of the U.S. adult population that have a criminal record on file with states.
However, despite these alarming statistics, an employer cannot simply say, ‘No one with a criminal record need apply.’ That statistically could end up having an unfair impact on certain groups. Instead, if an applicant has a criminal record, the employer must determine if there is a rational, job-related reason why that person is unfit for that job. In other words, an employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.
The NELP report – ‘65 Million “Need Not Apply” – The Case for Reforming Criminal Background Checks for Employment’ – is available for download at http://www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf?nocdn=1.
Further evidence that the number of people in the United States who have criminal records is larger than most people think, the federal government’s National Longitudinal Survey of Youth 1997 (NLSY97) has found that nearly one third of the 23-year-olds participating in the study – 30.2 percent – reported being arrested for an offense other than a minor traffic violation, a figure noticeably higher than the 22 percent reported in an earlier NLSY study conducted in 1965. More information about The NLSY97 study may be found at http://www.bls.gov/nls/nlsy97.htm.
The NLSY97 web page states the study “consists of a nationally representative sample of approximately 9,000 youths who were 12 to 16 years old as of December 31, 1996. Round 1 of the survey took place in 1997. In that round, both the eligible youth and one of that youth’s parents received hour-long personal interviews. Youths continue to be interviewed on an annual basis.” The NLSY97 study “documents the transition from school to work and from adolescence to adulthood.”
According to researchers, 15.9 percent of the participants in the study reported having been arrested by the age of 18, a possible reflection of the increase in arrests for drug-related offenses, zero-tolerance policies in schools, and a more aggressive and punitive justice system. The higher numbers of arrests occurring in late adolescence and early adulthood, at a time when most people enter the workforce, are notable since employers now routinely conduct criminal background checks on job candidates.
The questions for the ‘Crime, Delinquency & Arrest’ section of the NLSY97 survey asked the youth respondents whether they had ever been arrested by the police or taken into custody for an illegal or delinquent offense (not including arrests for minor traffic violations) and the total number of times that it had happened. The list of possible arrest charges included: assault, burglary, destruction of property, possession or use of illicit drugs, sale or trafficking of illicit drugs, a major traffic offense, and a public order offense. More information on the ‘Crime, Delinquency & Arrest’ section of the NLSY97 survey is at: http://www.nlsinfo.org/nlsy97/nlsdocs/nlsy97/topicalguide/crimeetc.html.
Despite the surprisingly high percentage of Americans with criminal records, employers using criminal background checks for employment purposes should be careful not to have a “blanket policy” that excludes job applicants who are ex-offenders. Employers should follow the EEOC guidelines for conviction records under Title VII of the Civil Rights Act of 1964 that prohibits discrimination in employment based on race, gender, national origin, and other protected categories.
The issue of whether employers can use a job application to ask about a job applicant’s criminal record is becoming more complicated. In an effort to provide fair employment opportunities for ex-convicts, some states, cities, counties, and local governments across the country are joining the “ban the box” movement and removing the “box” job applicants are asked to check next to the question on the job applicant asking about past criminal arrest and convictions to give those applicants with criminal pasts a fair shot at obtaining employment. By removing this question, supporters claim job applicants can be sure that they will not be automatically excluded for consideration for a job because of their past mistakes.
A July 2011 Resource Guide from NELP – ‘Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records’ – lists the following cities and counties as having already banned the box asking applicants about felony convictions: Alameda County, CA; Austin, TX; Baltimore, MD; Berkeley, CA; Boston, MA; Bridgeport, CT; Cambridge, MA; Chicago, IL; Cincinnati, OH; Detroit, MI; Hartford, CT; Jacksonville, FL; Kalamazoo, MI; Minneapolis, MN; Multnomah County, OR; New Haven, CT; Norwich, CT; Oakland, CA; Philadelphia, PA; Providence, RI; San Francisco, CA; Seattle, WA; St. Paul, MN; Travis County, TX; Washington, DC; and Worcester, MA.
Others have since joined the “Ban the Box” movement and removed the question regarding arrests and convictions from job applications. The July 2011 Resource Guide from NELP – ‘Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records’ – is available at: http://www.nelp.org/page/-/SCLP/2010/BantheBoxcurrent.pdf?nocdn=1.
Some states are enacting laws for banning questions about criminal records of job applicants on employment applications. For example, an overhaul of the Massachusetts Criminal Offender Record Information (CORI) that took effect November 4, 2010 means employers in Massachusetts can no longer be able to ask about convictions on “initial” written job applications because of new legislation that prohibits employers from asking about criminal offender record information, which includes criminal charges, arrests, and incarceration. For more information on the CORI reform law in Massachusetts, read: http://www.esrcheck.com/wordpress/2010/11/03/esr-news-alert-massachusetts-cori-reform-law-prohibits-employers-from-asking-about-criminal-convictions-on-initial-job-applications-effective-november-4-2010/.
For more information on what language to use in job applications, read the article ‘Special Report: Criminal Records, Employment and Employment Applications’ at http://www.esrcheck.com/articles/crime_and_employment_application.php.
In a letter to the EEOC dated December 20, 2011, Senator Michael Enzi (R-Wyoming), the ranking Republican member on the Senate Health, Education, Labor, and Pensions (HELP) Committee, wrote that the Commission was “considering moving forward and issuing new guidance on both criminal background checks and credit checks without input from the stakeholders on the specific changes it intends to make to the guidance.”
Senator Enzi wrote that since it is important the EEOC “strikes the right balance between preventing discrimination and preserving the rights of employers to protect the safety of people and property in their workplaces,” any changes in guidance for criminal checks and credit checks should be made with “a full understanding of their implications” and allow “full involvement of the stakeholders who will be most affected” by new guidance.
Senator Enzi told the EEOC that background checks are such a helpful and valuable tool “in achieving safe workplaces that they are mandated by states and federal law in many cases.” Background checks help employers that are “legally responsible for the safety of their employees, customers, and visitors in their workplace” and “legally liable for breaches of trust that lead to theft of personal data, money or goods, and physical damage to their workplace of environment.”
Senator Enzi also warns the EEOC that without the “confidence in a job applicant’s trustworthiness” that background checks can help create, employers “will be less likely to hire anyone, but particularly those who they do not know.” On the other hand, those employers that do hire without using background checks risk “devastating damage to people and property.”
The letter from Senator Michael Enzi to the Equal Employment Opportunity Council (EEOC) is available at http://www.esrcheck.com/wordpress/wp-content/uploads/2012/01/Senator-Enzi-Letter-to-EEOC.pdf.
For job seekers with criminal records, looking for work can be a frustrating case of “Catch-22” since most job applications ask about criminal convictions and the majority of employers run criminal background checks on job applicants. If job seekers are honest and admit their past criminal records, they risk not getting the job. If they lie, they risk of being terminated if their criminal pasts are discovered.
The article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ offers six critical steps for job seekers with criminal records to follow to help them find employment as they attempt to re-enter the workforce. outlines six steps that ex-offenders should take to find employment:
- Step One – Understand Rights: Job seekers with criminal records looking for employment must understand their rights since there are instances where they can legally and ethically answer “no” on a question about a past criminal offense.
- Step Two – See an Attorney: Job seekers with criminal records should see an attorney to explore if they are eligible to get their conviction sealed, expunged, or legally minimized and to make sure you understand your rights.
- Step Three – Seek Professional Assistance: Job seekers with criminal records should seek professional assistance since there are organizations that can assist them with job search and training programs, some with relationships with employers willing to give ex-offenders a chance.
- Step Four – Honesty Is the Best Policy: Honesty is the best policy for job seekers with criminal records when applying for a job, since a criminal matter honestly explained during an interview may have much less negative impact than hiding it and having an employer discover it later.
- Step Five: Rebuild Résumé One Step at a Time: Job seekers with criminal records should start to rebuild their résumés one step at a time, even if it is not with the “perfect” job, since employers know that the best indicator of future job performance is past job performance.
- Step Six: Take the Long-term View: Job seekers with criminal records need to take the long-term view and have the faith and patience that the criminal matter will eventually be put behind them.
Background check providers are not the employment police looking for ways to keep job seekers from finding work. Background checks occur at the intersection of security and privacy; the employer’s obligation by law to perform due diligence to ensure a secure workplace and the job seeker’s right to personal privacy, and to a second chance.
The article, ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce,’ is available on the ESR website at: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce.php. A version of the article in Spanish is also available at: http://www.esrcheck.com/articles/Criminal-Records-and-Getting-Back-into-the-Workforce-SPANISH.php.
Employment Screening Resources (ESR), a nationwide background check company accredited by The National Association of Professional Background Screeners (NAPBS), submitted a letter for public comment to the Equal Employment Opportunity Commission (EEOC) after the July 2011 meeting that examined the use by employers of arrest and conviction records for criminal background checks to determine if the practice was an unfair and discriminatory hiring barrier to job seeking ex-offenders. The EEOC had held open the July 26 meeting record for 15 days and invited members of the public to submit written comments on any issue or matters discussed at the meeting.
The letter stated that in reviewing of some of the comments and testimony from the hearing, it appears there are some important considerations that the EEOC should consider that may not have been sufficiently addressed at the meeting since the rights of ex-offenders to a second chance must be balanced with the rights of employees to have a safe workplace.
Of course, the pre-employment screening industry recognizes that unless ex-offenders receive a second chance, we stand the risk as a society of creating a class of permanently unemployed and employable individuals. The results are not only devastating to the ex-offenders and their families, but it also places a substantial strain on societal resources. However, it is just as important to understand that innocent people have the right to be safe in their workplaces and everyday lives.
The use of criminal records is a difficult issue because it involves important American values that can seem to conflict. On one hand, Americans value public safety and a safe workspace with honest and qualified employees. All Americans have a right to be safe and secure in their workplace. On the other hand, as a society Americans believe in second chances, and that a person’s past should not hold him or her back forever, particularly for more minor offenses. The issue is how to draw lines that both protect innocent people and, at the same time, does not burden the taxpayers by creating a permanent class of unemployed people. Unless an ex-offender can get a job, they cannot become a taxpaying and law abiding citizen and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance.
In seeking to balance these competing interests, ESR hopes that the EEOC will recognize that there are some “real world” issues that need to be considered that include:
- Employers face significant risk if a person that is dangerous, unfit, unqualified, or dishonest is hired.
- A professional background screening firm – also known as a Consumer Reporting Agency or CRA – operating under the federal Fair Credit Reporting Act (FCRA) is an entirely different industry than the cheap and instant online database searches that can result in inaccurate data. A CRA preforms screenings under the strict standards of the FCRA based upon the applicant’s written consent, as opposed to data aggregators that sell data to anyone with a credit card.
- Background screening firms are NOT the employment police, but professionals that gather relevant information so employers can make intelligent decisions. Background check reports provided by a Consumer Reporting Agency protect both employers and job applicants by providing employers with reports with much greater accuracy that filter out information that cannot be used, and providing job applicants with an immediate avenue to contest any information in the report.
- The background screening industry as a whole has been the primary reason why employers have become aware of the EEOC position on the overly board or automatic use of criminal records, since background screening firms deal with a high percentage of U.S. employers and typically include client education on how to properly consider the use of criminal records.
- The issue of inaccurate records comes primarily from the data aggregator firms. A simple solution is to require any employer to only utilize information that has been confirmed as accurate and up to date from a primary source, such as a courthouse search.
- Over 140 background screening firms have joined an industry group called “ConcernedCRAs” (http://www.concernedcras.com/) that opposes the use of databases provided by data aggregators for employment purposes, without first reconfirming that the information is currently complete, accurate and up-to-date.
ESR commented that the EEOC should undertake a fair and well-reasoned evaluation of all the issues and how its rulemaking in this area would impact all stakeholders: It is certainly critically important to our society that everyone have a second chance. However, citizens also have a right to be free of violence and fraud in their everyday dealing, either as a member of the public, an employee or employer. In reaching these difficult decisions, it is critical that the EEOC have a full understanding of all of the facts that surround background checks and criminal records.
In ESR’s experience, employers have a high degree of awareness of the EEOC concerns about criminal records because of the background screening industry. As an industry, background screeners work with a high percentage of employers throughout America and educate them as to the EEOC guidelines on criminal records and business justification, and background screeners have been one of the most effective means of employer education on the EEOC guidelines.
ESR is hopeful the EEOC will recognize the expertise and experience of the background screening industry, and will partner with the background screeners on this issue. It is ESR’s hope the EEOC will lead by moral example and not just by rule making and lawsuits.
The letter from Employment Screening Resources (ESR) to the Equal Employment Opportunity Commission (EEOC) is available on the ‘Equal Employment Opportunity Commission (EEOC) and the Use of Criminal Records for Employment’ page at http://www.esrcheck.com/EEOC-and-the-Use-of-Criminal-Records-for-Employment.php.
To read more ESR News blogs tagged ‘criminal records,’ visit http://www.esrcheck.com/wordpress/tag/criminal-records/.
To learn more about background checks, visit Employment Screening Resources (ESR) at http://www.esrcheck.com/ or call ESR toll free at 888.999.4474.
About Employment Screening Resources (ESR):
Founded in 1997 in the San Francisco, CA area, Employment Screening Resources (ESR) literally wrote the book on background screening with “The Safe Hiring Manual” by ESR Founder and CEO Lester Rosen. ESR streamlines the screening process and reduces administrative overhead though its proprietary technology solutions. ESR is accredited by The National Association of Professional Background Screeners (NAPBS®), a distinction held by less than two percent of all screening firms. This important recognition was achieved by successfully passing a third party audit demonstrating compliance with the NAPBS Background Screening Agency Accreditation Program. By choosing an accredited screening firm like ESR, employers know they have selected an agency that meets the highest industry standards. For more information about ESR, visit http://www.ESRcheck.com or call toll free 888.999.4474.
About ESR News:
The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at firstname.lastname@example.org.