Taking a Chance on Individuals with a Past Criminal History

State legislatures are making new laws to make it easier to hire people with criminal histories.   Low unemployment is great for society, but it is a problem for employers looking to fill positions within their companies.  And according to the Dept of Justice there are more than 650,000 prisoners released each year that could help with this problem, but hiring people with criminal records is a concern when considering matters of privacy and workplace safety.  There is also concern over the business’s reputation and not to mention legal and financial concerns.  In some states it is illegal for the employer to disclose an individuals criminal history to other employees and in some states it is even illegal for the employer to ask about criminal history when hiring a candidate.  Employers who choose to hire from this candidate pool need to take some well informed steps to navigate this hiring practice.

The State of South Carolina just passed legislation to allow individuals with certain criminal records to have these records expunged after petitioning the court to do so.  Once expunged they would no longer be required to disclose this history on job applications and it would not be included in background checks.  The new law, Act No. 254, becomes effective Dec. 27.

There are some economic advantages to hiring people with a past criminal history such as WOTC (Work Opportunity Tax Credit) credits which may offset an ex-offender’s wages by up to $2,400.  And similar to the common arguments heard when justifying the hiring of migrants, these candidates may also be more willing to fill jobs that others will not

For businesses who do decide to recruit from this candidate pool, steps should be taken to ensure success in this decision.

  1.  Seek help!  There are support organizations and designated people in law enforcement/corrections who will help guide you through these types of decisions.  These organizations also coach and train people to help them be better prepared for the job opportunities that may come.  They also work with the employer to help better manage people in this situation and to set expectations from both sides of the table.  Employees are encouraged to go beyond what the employer is asking of them and employers are asked to be less quick to terminate due to workplace issues.  The approach seems to work as demonstrated by a report from the University of Las Vegas stating that one such program saw that 64% of the people studied found long term employment while only 6% were re-incarcerated.
  2. Make your case!  Simply saying “It’s the right thing to do.”, will not in most cases make your argument to management or the rest of your workforce.  Explore the financial impact of the WOTC credits and how they may effect the bottom line.  Also, concerning safety or other legal concerns, know that the criminal justice system imposes an extra level of accountability on the employee.  Making conditions like arriving at work sober or even random drug testing a condition of parole.  This helps in establishing good work behaviors.  Between the WOTC credits and the extra behavioral incentives most employers are able to make a case to hire.  And reportedly, these employees have an exceptional attitude, affirming that former prisoners are likely not to be a liability or a disruption.
  3. Stay compliant!  As with anything HR, there are regulations you must follow when hiring an employee.  28 states and more than 150 cities and counties have adopted “ban-the-box” legislation that prohibits employers from asking about applicants’ criminal histories early in the hiring process.  And the EEOC is closely watching for company policies which prohibit or discourage hiring former prisoners.  On the other hand if another employee is later assaulted and it was found the employer knew that they knowingly hired the assailant with a violent criminal history, then the employer may be accused of “negligent hiring” and may find themselves liable for the injuries.  Also, be careful that the requirements of the job do not conflict with the criminal background of the individual.  For example, you should not allow an individual with a DUI in their history to drive a company vehicle, but they may be fine working in other job positions.
  4. Who needs to know?  This is a difficult and sticky question to answer.  Of course HR and the owner should know, but what about supervisors or coworkers?  One approach is to limit this information strictly on a need to know basis.  Vet if each person you would consider telling really needs to know.  Unless there is a safety concern or some other valid concern, does the supervisor really need to know?  Do the coworkers?  Another way to address this is to have it documented in the company policies that the company may hire individuals with criminal histories as a broad statement.  This wont stop employees from googling each other, so be prepared to justify hiring choices if needed.

There are advantages and disadvantages to the decision to hire individuals with a prior criminal history.  We work in an environment of legislation meant to protect the individual’s right to privacy by expunging criminal history and restricting employers from even asking such questions in the hiring process.  This is truly a challenging area of HR to navigate.  Be sure to ask for help when needed, be prepared to justify your decisions to management and to coworkers when asked and always stay compliant with local, state and federal rules and regulations.  Good luck!

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