As recently as seven years ago employers were so reluctant to hire workers who had criminal backgrounds that the Equal Employment Opportunity Commission chose to publish guidance for them on the issue.
“That guidance is moot,” declares Ross I. Molho, an attorney with the law firm of Clingen Callow & McLean (CCM). “When employers call CCM now, they want to have an individualized discussion about candidates with criminal records. Ironically, this is exactly what the EEOC instructed employers to do back in 2012.”
This change was spurred by the dramatic reduction in unemployment in recent years, which has culminated in a labor shortage many employers have not experienced before and find increasingly difficult to answer. Another motivating factor for employers are the nationwide programs developed in recent years to encourage employers to hire ex-offenders.
In December 2018, President Trump signed the First Step Act, which embraced a number of prison reforms. It provides for $250 million over five years to be spent on new inmate education and-rehabilitation programs, including job training. In April, the President announced the Second Step Act containing additional reforms and at the time encouraged employers to adopt second chance hiring practices.
In many cases employers who have hired ex-offenders have experienced positive results, and surveys have found that co-workers and customers hold positive attitudes in this regard. One poll showed that 78% of Americans feel comfortable interacting with workers with a nonviolent criminal record.
Learning the distinctions among different kinds of crimes applicants have committed is important in evaluating their prospects as employees, Molho stresses. Here is some of the advice he says his law firm gives to its employer clients, although you may find yourself taken aback by some of what he recommends.
The most common conviction revealed by background checks are drug crimes. Consider when the drug crime was committed. “If the applicant was convicted in young adulthood, that is more forgivable than a conviction as an adult,” Molho observes.
Look at the type of drug conviction: Was it possession or trafficking? Use and possession of drugs is arguably less serious and less of a problem for employers than trafficking, and a marijuana conviction less serious than a narcotics conviction. But remember that more than one DWI conviction signals a serious substance abuse problem, he says.
The nature of the job is vital. Obviously, truck drivers and forklift operators cannot be addicted to opioids. Employers may be able to afford to take more chances with a file clerk.
Don’t get caught up in distinctions between misdemeanor and felony convictions, Molho advises. “There is little uniformity with how drug crimes are charged, prosecuted, or plea bargained.”
The most salient fact when evaluating an applicant convicted of a violent crime is when the crime occurred. If there is a decent interval between when the crime was committed and the present, with no intervening convictions, employers may consider the candidate for hiring.
Although most employers probably would be reluctant to hire individuals convicted of homicide, most murderers are not repeat offenders, Molho points out. “The recidivism rates for homicide, for example, are lower than any other crime,” he reveals.
However, he admits that when it comes to violent crimes perpetrated against women—rape, sexual assault and domestic battery—this can be difficult to integrate into certain workplaces. “Many employers tell us that their workforce is at least 50% female and they do not feel comfortable hiring these kinds of applicants.” However, these applicants have the second lowest recidivism rate behind those convicted of homicide, he notes.
Crimes of Dishonesty/Crimes Against Property
The recidivism rate for crimes against property—burglary, larceny, motor vehicle theft and fraud/forgery—is 82.1% over a period of five years.
Molho warns, “These applicants need to be rigorously vetted and should not be given access to an employer’s financial infrastructure unless they have proved themselves over time.”
When interviewing any applicant with a criminal record, he suggests using open-ended questions, such as: Tell me about your criminal conviction. Have you changed since your criminal conviction? Who did you hurt? How have you tried to make amends for your conviction?
“These four questions should reveal a great deal about the conviction in the past, and the applicant in the present,” according to Molho.
Also, he reminds employers, don’t forget the federal Work Opportunity Tax Credit for hiring felons. Employers claim about $1 billion in tax credits each year under the WOTC program. There is no limit on the number of individuals an employer can hire to qualify. It is available to all employers who hire ex-felons, based on the individual’s hours worked and their wages earned in the first year.
“Hiring individuals with criminal backgrounds is not a solution for every employer,” Molho agrees. “For some employers, however, it can mitigate the present labor shortage.”