Hiring an applicant with a criminal record can be a daunting move for even the most confident hiring managers. If done right, however, the hiring decision can be mutually beneficial to both the applicant and the company. Your organization can add talented and hardworking professionals to your workforce, and as an added bonus, you may also be eligible to receive certain tax credits designed to incentivize the practice of hiring individuals with past convictions.
Interested in the process, but unsure of where to start? In this post, the HR Compliance Experts at Axcet HR Solutions will cover the basics of what employers should know about hiring an applicant with a criminal record.
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It’s not unusual for business owners to be wary of the decision to hire an applicant with a past criminal record. The reason for this comes down to a fear of the unknown; it’s hard to know for sure if an individual will act out of turn in the workforce. When all a hiring manager has to go off of is an applicant’s past, looking over a conviction can be tough to do.
However, data shows that in reality, employers have very little to worry about. In fact, the opposite of our natural inclinations is typically true. According to a study published in the Journal of Social Forces in 2018, ex-felons employed by the Department of Defense were no more likely to be let go for misconduct or poor performance than their coworkers.
Did you know that 1 in 3 U.S. adults have a criminal record? Counting out the tens of millions of potential employees with blemishes on their records could mean missing a true star in a department that needs a fresh perspective. While, depending on your location, you may not be breaking any laws by excluding applicants with prior records, you may be risking discrimination.
The EEOC (Equal Employment Opportunity Commission) publishes enforcement guidelines on the consideration of arrest and conviction records in employment decisions under Title VII or the Civil Rights Act of 1964. The guidelines state that “an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.” This can be true if your hiring policies have the potential to also disproportionately exclude applicants based on their race or nationality.
Many individuals with criminal records want the chance to prove that they can successfully reintegrate into society. As a result, they may be more productive than their coworkers. The Society for Human Resource Management found that “more than two-thirds of HR professionals who have hired people with criminal histories think their quality of work is as high as or higher than the work of employees who don't have a criminal record.”
If you’re considering expanding your applicant search to include individuals with criminal records, you’re not alone – and you can find confidence in the fact that if the practice was a problem, other HR departments wouldn’t be doing it. While hiring individuals with violent crimes or theft felonies isn’t as popular, three-fourths of HR professionals have hired an applicant with either a misdemeanor or a drug-or alcohol-related felony, including a DWI. Many managers report that these employees are just as valuable, if not more valuable, than their coworkers, and have the desire to work hard when they’re given a chance to do so.
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Did you know that your organization could be eligible to receive tax credits for hiring applicants with past criminal records? The amount you can receive may vary based on your location, as state and local benefits exist to complement the federal tax credits provided by the U.S. Government. The main program advanced by the U.S. Government is called the “Work Opportunity Tax Credit,” or WOTC. Credits provided by the WOTC are extremely lucrative: in many cases, employers can receive a dollar-for-dollar match on the salary they pay to an ex-felon.
As mentioned previously, many managers, business owners and HR professionals are wary of hiring ex-convicts for good reason. If an employer hires or retains an individual despite knowledge of previous improper behavior (i.e., battery, physical assault), and the employee then assaults someone at work, that injured party could argue the employer knew or should have known, that the employee might hurt someone.
The federal government offers some relief from this type of concern in the form of the “Federal Bonding Program” or FBP. The program protects employers against losses they might incur if they hire an applicant with a criminal record that then commits a crime against or on behalf of the company. Employers do not have to pay into the program to receive the bonds, and there is no deductible when drawing upon the program’s funds. However, receivable bonds are limited in the amount of $5,000 per employee and they only extend to the first six months of the individual’s employment. Funds also do not extend to pay for the repercussions of an employee’s commission of any violent crimes, such as battery.
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In making a decision to hire an individual with past convictions you should be aware of a few key compliance considerations. You should also plan for the possibility that an employee’s criminal history could become known around the workplace. This is especially common for individuals who are listed on a sex offender registry. Criminal history can become fodder for gossip, discomfort, and contempt among coworkers or customers. Consider updating your employee handbook to highlight that disparaging comments about coworkers will not be tolerated. You should also be aware of applicable federal and state laws relevant to the decision to hire individuals with prior convictions.
Currently, 34 states have implemented “ban the box” laws, and it’s expected that more states may follow soon. For organizations with a national presence, it could be a good idea to implement compliance with ban the box laws across the board.
Ban the box laws vary in exact requirements from state to state, but they all have the same essential premise: they forbid companies from prohibiting individuals with past criminal records from applying for a role. These laws also broadly prohibit asking if an employee has a prior conviction during the initial application; in other words, any assessment of a criminal conviction cannot be done until after an employee has been through the interview process and a final hiring decision is ready to be made.
These state laws go by many names: Second Chance Laws, Fair Chance Laws, and Clean Slate Bills, to name a few. In essence, these laws are designed to assist those who have been arrested or convicted of a crime in the state to obtain a second chance at having a clear criminal history. While these laws generally don’t require much from employers by way of compliance, the spirit of these laws is supportive to applicants who are seeking a new start. Developing a fair screening process for applicants and taking into consideration mitigating factors, including the applicant’s age at the time of the conviction, the type of conviction, and rehabilitation efforts, among other items, can help you create a progressive hiring strategy.
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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, 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.
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