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Company Policies for Hiring Applicants with Criminal Records

By Mariah Collins, SHRM-CP on Aug 31, 2022
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If your company is interested in hiring applicants with criminal records, you’re likely already aware of the many benefits of doing so. Companies who hire applicants with prior records are often making a decision that benefits both the new employee and themselves, from increased productivity within the workforce to potential tax credits and other government assistance available to qualifying employers.

If you’re ready to integrate a new policy of openness to hiring applicants with criminal records, but are unsure of where to start, the HR compliance experts at Axcet HR Solutions have you covered. Here's what you need to know about the basics of crafting your inclusive hiring policy, including three things to think about as you’re putting your policy together.

RELATED: Hiring Someone with a Criminal Record >>

What Should Go into My Policy on Hiring Employees with Prior Criminal Records? 

Many things go into the making of a sound policy; crafting a new policy takes time and consideration. Below are three things to think about as you’re putting your inclusive hiring policy together. Click here to see a sample policy written by one of our HR experts >>

sample policy hiring an applicant with a prior criminal background

1.  Compliance Concerns

The first step in crafting a policy for hiring applicants with criminal records is to be aware of any state laws that apply where your business operates. Specific questions should always be addressed with a trusted PEO, but in general, you will need to follow the laws of the states in which you are incorporated and in which your hired employees live and work. If your company operates in multiple states, adopting an inclusive hiring policy for applicants with criminal records can save you a lot of worry about whether you’re in compliance with various state laws. 

If your state is one of the 34 with “ban the box” laws, you should be aware that a policy of openness to hiring individuals with criminal records is not optional, it’s required by law. Ban the box laws have requirements that can shift from state to state. For example, Kansas law provides that an employer can only refuse to hire an applicant whose criminal history "reasonably bear[s]" on either their trustworthiness or the safety and/or wellbeing of the employer's customers or other employees. Most ban the box laws have similar allowances, but in general, their purpose is to forbid companies from prohibiting individuals with past criminal records from applying for a role altogether. 

RELATED: Kansas City Joins Nationwide Ban the Box Movement; Impacts Public and Private Employers >>

2.  Cohesiveness with Other Company Policies

Before (and during) the process of crafting an open and inclusive addendum to your hiring policy, consider the other policies you currently have which may come into play. Do you have a background check policy, for example? If so, it may need to be updated to reflect that past misdemeanors or felonies are not grounds alone for the dismissal of an applicant. 

Do you have an anti-discrimination policy? If so, your new policy of openness to employees with prior criminal convictions may go hand-in-hand with your anti-discrimination policy in several key ways. First, your inclusive hiring policy is an extension of your company’s commitment to being anti-discriminatory in hiring, promotion, and pay practices. Secondly, your other employees must be on notice that they may not discriminate against applicants or employees with former criminal convictions. Reviewing your anti-discrimination policy before drafting your new hiring policy will help frame your objectives. 

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3.  How Far Should Our Commitment Go?

Many employers want to know: do we have to hire any applicant with a criminal record just because we have an inclusive policy? The short answer is no, you don’t have to – even if your policy expresses a willingness to take all factors of a conviction into consideration, such as the type of crime, the length of time since the offense, and any successful rehabilitation efforts. As an employer, you always have the right to view an applicant’s criminal record before making a final hiring decision. What your organization cannot do is make a decision not to hire an applicant based on the existence of a criminal record alone. 

If, after taking all factors into consideration, your company believes the applicant could be a liability in the role for which they have applied, you are within your rights to not extend a final offer to that applicant. 

Keep in mind that the above advice is intended for most businesses, but laxer consideration requirements may apply to certain industries and certain roles. If your business operates in certain industries, such as banking, or the role for which the applicant applied requires carrying a handgun or working with vulnerable individuals such as children or the elderly, you may not need to consider the application of an individual with a prior conviction at all. 

RELATED: Common Interview Questions That Are Actually Illegal >>

Axcet HR Solutions: Your Partner for all Things HR Compliance

Are you considering creating a new policy of openness to applicants with prior criminal convictions? Are you already open to hiring these individuals, but interested in learning more about the compliance considerations surrounding the practice? Meet Axcet HR, your partner in all things HR Compliance. We believe experience and expertise matter when you’re faced with tough choices and need a trusted advisor to help. If we sound like a company you’d like to partner with, let’s talk.

Axcet HR Solutions HR PEO Services

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