The number of Americans job seekers with criminal histories is larger than ever before and includes nearly 65 million people – over one in four U.S. adults – due to increased enforcement for nonviolent crimes like drug offenses and the release of more than 700,000 people from prisons each year, according to criminal justice experts quoted in a recent New York Times article ‘Internet Lets a Criminal Past Catch Up Quicker.’ As a result, U.S. employers will need to ensure compliance with federal, state, and even city guidelines concerning the use of criminal records when performing employment screening background checks.
A March 2011 study by the National Employment Law Project (NELP) estimated that 64.6 million people in the United States, representing 27.8 percent of the U.S. adult population, had a criminal record for either an arrest or a conviction on file with states. NELP – a national advocacy organization for employment rights of the unemployed – based the estimate on a 2008 Survey by the U.S. Bureau of Justice Statistics (BJS).
The U.S. Equal Employment Opportunity Commission (EEOC) has set guidelines on how employers may use criminal records by making the use of a blanket “no hire” policy that screens out all people with a criminal history unlawful under Title VII of the Civil Rights Act of 1964 since it could discriminate against minority groups such as African-Americans and Hispanics that have higher rates of criminal convictions.
In addition, many U.S. cities – such as Philadelphia, Pennsylvania – and states including Massachusetts and Hawaii are joining the growing “ban the box” movement removing questions about criminal histories of job seekers on initial applicantions and interviews and imposing legislation restricting employer use of criminal records and employer inquires into criminal record history.
Recent recidivism studies quoted in the NY Times article showed one-third of people released from prison returned within three years, and that ex-offenders are more likely to commit crimes than people without criminal convictions. However, new “redemption research” studies by criminologists found that the risk of ex-offenders being re-arrested decreased substantially over time, usually 7 to 10 years after a conviction.
“An employer cannot simply say, ‘No one with a criminal record need apply,’” according to Lester Rosen, founder and President of Employment Screening Resources (ESR), a background check provider headquartered in the San Francisco area and accredited by The National Association of Professional Background Screeners (NAPBS®). “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,” explains Rosen, author of ‘The Safe Hiring Manual,’ the first comprehensive guide to employment screening. “In other words, an employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.”
Rosen adds that employers should follow EEOC guidance on criminal records and consider how long ago the criminal offense occurred, the nature of the criminal offense, and whether the criminal offense is indeed job-related.
For more information on criminal records and background checks, visit Employment Screening Resources (ESR) at http://www.ESRcheck.com.
To read the study from the National Employment Law Project (NELP), visit: http://www.nelp.org/page/-/65_Million_Need_Not_Apply.pdf.
About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco Bay area with a mission to help 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. ESR is Accredited by The National Association of Professional Background Screeners (NAPBS®) and is a Designated E-Verify Employer Agent helping U.S. businesses maintain legal workforces. For more information about Employment Screening Resources, visit http://www.ESRcheck.com or email ESR News Editor Thomas Ahearn at [email protected].