How to Practice Fair Chance Hiring for People With Criminal Records

Usually when you think of your dream hire, you think of someone who is respectful, trustworthy, reliable, and has sound judgment, right? As you envision your ideal candidate with these qualities, the last person you think of is someone with a criminal record.

In most cases, this is normal because of the way society has conditioned us to view “criminals”. However, the Labor Shortage and Great Resignation has inspired many employers to look for candidates in unlikely places. Truth be told, hiring people with a criminal record is beneficial. It diversifies your workforce, helps attract candidates, and gives you a larger candidate pool to choose from. So, here’s the scoop on hiring people with a criminal record.

What Does the Law Say About This?

If you own a business and have been hiring for a while, then you’ve likely heard of the EEOC (Equal Employment Opportunity Commission). This is the governing body that ensures candidates and employees are receiving equal treatment no matter their background, race, religion, etc.

The EEOC has been clear about its viewpoint and enforcement on discrimination based on a criminal record. In one of their governing enforcement guides, they specify that employers may NOT:

  • Treat people with similar criminal records differently
  • Utilize screening practices that don’t accurately demonstrate a candidate’s responsibility or reflect the safety of employees
  • Make hiring decisions solely on arrest records, especially if the person was not convicted
  • Use screening methods that “significantly disadvantage” candidates that are usually protected under TITLE VII

There is nothing stopping you from running background checks and acquiring information on a candidate’s criminal record. It’s actually recommended, depending on your industry. However, if you do so, make sure you get the candidate’s permission and provide them a copy of whatever background report you request before making ANY hiring decisions.

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Why Hire Someone With a Criminal Record?

Before automatically counting out candidates who have a criminal record, consider these statistics.

77 Million Americans

have a criminal record. That is at least

1 in every 3 American adults.

Each year, more than

600,000 inmates

are released from state and federal correctional facilities.

Meanwhile there are

nearly 11 million people

who go through the local jail system each year.

Considering the facts, counting out this many Americans based on criminal record shrinks your candidate pool tremendously. On another note, living with a criminal record is not easy, especially if the person was incarcerated. People with criminal records don’t always get the support they need from society and societal systems. They face challenges such as lack of employment, lack of housing, little to no financial assistance, and so much more, which is one of the reasons the United States has some of the highest recidivism rates.

Not only does recruiting and hiring people with a criminal record allow you to make a positive contribution to society, but there are also other reasons you should consider these candidates.

You Might Qualify for a Tax Credit

There are several instances where employers can receive tax credits or hiring incentives for hiring employees with criminal records. For example, The Work Opportunity Tax Credit (WOTC) is a federal tax credit available to employers who hire people who face barriers to employment (including criminal records, incarceration, convictions, etc.). For information on other tax credits and incentives, you’ll have to check your state’s tax benefits and municipal incentive programs. Maybe your state offers a tax deduction instead of a credit, or maybe your city offers cash reimbursements. Either way, this is good news for small- and medium-sized businesses.

Additionally, the Department of Labor offers free bonding through The Federal Bonding Program, which is a bond insurance that covers employers against losses related to potential employee theft or dishonesty.

You May be Able to Hire Without Adjusting Your Budget

In most cases, people with criminal records know that they may not land a high-paying job right away. This is not an excuse to underpay them. However, it does mean that you may be able to make a competitive job offer without worrying about negotiating higher pay, especially if you don’t have the money.

You May Get a More Loyal Employee

Studies show that workers with criminal records were more productive, harder working, and more loyal than workers without criminal records. This may be due to the fact that opportunities are far and few in between for them. As a result, they take advantage of every job offer they have.

They’ve Already Served Their Time

At the end of the day, they have already served their time or completed their punishment. In fact, most people who reenter society or have a criminal record didn’t get arrested for dangerous or heinous crimes. Of course there are people who you should look out for, but you should be able to identify those red flags in the interview and assessment process. In the end, there hasn’t been any research that links criminal records to crime on the job.

Fair Chance Hiring Brings Us Closer to Racial Equality

Since the turn of the decade, many companies are boldly supporting social issues. Not only has this helped to solidify their consumer base, but it has also helped immensely with recruiting. Turns out, younger candidates want to work for businesses that are positive participants in society. As a result we’ve seen companies who support women’s rights, racial equality, and environmental issues attract qualified, diverse candidates who feel the same way as they do.

Racial equality goes hand-in-hand with fair chance hiring. This is because people of color are more likely to have a criminal record. Additionally, people of color with a criminal record tend to have lower employment outcomes compared to their counterparts. So, hiring people with criminal records not only helps your employer brand, but it also invites more diverse talent to apply to your open positions. 

5 things to consider when hiring people with a criminal record

In What Cases is it a Bad Idea?

There are some instances when hiring someone with a criminal record is just a bad idea. This is not because they aren’t qualified or because they don’t deserve a fighting chance. It’s just that it may be illegal, or in extreme cases, it could ruin your reputation. So, 5 things to consider are:

The Nature of the Crime

In this case, you’ll need to evaluate how serious the crime is. There is a huge difference between a DUI versus murder. There may be cases where you are reconsidering hiring someone with a criminal record due to their record showing

  • violence
  • repeat offenses
  • threats to employee and customer safety

The Relevancy of the Crime to the Position

If you are hiring an accountant, and you get an applicant that was convicted for laundering money for a drug organization, then it would be understandable if you decided not to hire this person. Your duty is to make sure you are transparent, and you explain why it just won’t work.

Whether or not There was a Conviction

Keep in mind that if there was no conviction, then they are considered not guilty by the US justice system. In that case, it is possible that they didn’t actually commit the crime they were charged with. However, if they were charged and convicted with a very serious or violent crime, then it is reasonable to reconsider hiring them.

How Long Ago was the Conviction?

If the conviction was years ago, and the candidate has kept a clear record since, then that gives a little more comfort in making that hiring decision.

What is the Candidate’s Explanation?

There are times when people will be convicted, serve time (or other punishments), and still not take responsibility. There are few instances where people are falsely convicted. However, in most instances, not taking responsibility or showing the inability to reflect on what happened is a huge red flag.

5 Tips to Recruit and Hire People with a Criminal Record

Create an Intentional Hiring Plan

First and foremost, you should do a review of your current hiring plan and policies to make sure you aren’t unintentionally (or illegally) excluding people with criminal records. Things to look out for are

  • making candidates disclose their criminal history early in the process
  • doing background checks before you get to know the candidates
  • strict education and experience requirements

Additionally, you should review your diversity and inclusion hiring policies to make sure you know exactly how you plan on evaluating diverse candidates. For example, you should know how you plan to evaluate candidates with a criminal history or how many years into your candidates’ past you will search.

Check Federal, State, and Local Laws

As previously mentioned, there are hurdles you’ll have to cross to make sure you create a fair hiring process for everyone. So, as you review your hiring policies and your diversity and inclusion initiatives, you should review the laws related to hiring people with a criminal record. This will help keep you in good standing and legally free from discrimination charges.

Separate Recruiting and Background Checks During the Process

The sourcing and recruiting process should be separate from background checks. Requesting information regarding criminal or arrest records before you get a chance to properly evaluate the candidate can make things very awkward moving forward. It also opens the door for implicit bias to influence your hiring decisions. An ideal time to do the background check is after interviews.

Look for Partnership Opportunities

Check out the workforce development programs in your state and city. Not only will they work to help support your new hires, but they can also help connect you with the right candidates. This is helpful if you are intentionally sourcing people with criminal backgrounds, or if you are looking for someone with a unique skill set.

Respect Your Candidate’s (or New Hire’s) Privacy

This is one of the most important things to consider when hiring people with a criminal record. Keep in mind that the only people who should be aware of the candidate’s or new hire’s criminal history are people who are responsible for reviewing the background report. The company’s management team should not know about the new hire’s criminal background. This will help keep work relationships neutral and unbiased. You never want your new hire to feel that their privacy was violated.

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