According to a new 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 March 2011 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 U.S. Equal Employment Opportunity Commission (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 misdemeanors or felonies:
- “No Exceptions! . . . No Misdemeanors and/or Felonies of any type ever in background.”
- “DO NOT APPLY WITH ANY MISDEMEANORS / FELONIES”
- “You must not have any felony or misdemeanor convictions on your record. Period.”
According to a 2010 survey of employment screening by the Society for Human Resource Management (SHRM), 73 percent of organizations polled conducted criminal background checks on all job candidates while 92 percent performed criminal background checks on some or all job candidates. While the NELP study states criminal background checks promote safety and security at the workplace in “the right situations,” criminal background checks that deny employment for people with criminal records can be illegal under civil rights laws when employers use blanket exclusions that do not take into account information such as:
- The nature of an offense,
- The age of the offense, or
- Even its relationship to the job.
NELP – a national advocacy organization for employment rights of lower-wage workers and the unemployed – features the following reforms in the report to advance the employment rights of people with criminal records and promote safety and security at the workplace:
- The federal government should aggressively enforce civil rights and consumer protections that apply to criminal background checks for employment in the public and private sectors.
- The federal government should adopt fair hiring policies regulating federal employment and contracting that serve as a model for all employers.
- State and local governments should certify that their hiring policies fully comply with federal civil rights standards and launch employer outreach and education campaigns.
- The employer community, together with Craigslist, should play a leadership role in raising the profile of this critical issue and promoting best practices that properly balance the mutual interest of workers and employers in fairer and more accurate criminal background checks for employment.
NELP 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.
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.
According to Attorney and safe hiring expert Lester Rosen, founder and President of San Francisco, California-area criminal background check provider Employment Screening Resources (ESR) and author of ‘The Safe Hiring Manual – The Complete Guide to Keeping Criminals, Terrorists, and Imposters Out of Your Workplace’:
“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.”
Founded in 1996 in the San Francisco, CA area with a mission to help both employers and employees maintain safe workplaces, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS). ESR is also a Designated E-Verify Employer Agent that helps U.S. businesses maintain a legal workforce. For more information about Employment Screening Resources (ESR), please visit http://www.ESRcheck.com or email ESR News Editor Thomas Ahearn at [email protected].