By Elizabeth Echard, Staff Writer
The number of qualified job applicants is not growing fast enough to satisfy the needs of employers. At any given point, six million jobs in the United States are unfilled.[1] While filling these jobs is vital to the success of the companies, certain applicants may find themselves turned away more frequently than others.
FBI statistics indicate that every 3 in 10 Americans have some sort of criminal record.[2] The natures of these crimes vary from stealing a pack of gum to committing a double homicide.[3] Given the need for qualified job applicants, how should employers create and use policies to handle an existing criminal record?
Of those with criminal records, some have committed serious offenses, some have committed minor offenses. Some have not committed any offenses at all, being found not guilty of the charge but failing to or not being able to afford getting the charge expunged, or being a victim of identity theft.[4] Criminal records are increasingly recognized as an “artificial” reporting too, as they may contain errors in the charges, and the evolution of our criminal justice system has led to increased incarcerations for crimes that weren’t historically prosecuted.[5]
A few decades ago, if a barroom brawl were initiated, the parties would be thrown out and told to never return to the establishment; if someone were seen smoking marijuana, he or she would simply be ignored.[6] Fast forward a few years, and people were being arrested and charged for smoking marijuana at a concert, which remained on their criminal record.[7] Fast forward a few more years to today: if a barroom brawl were initiated today, both parties would be arrested and charged with assault, which would follow them on their criminal records to any future employment they sought.[8]
How are employers supposed to properly use the information from criminal records to fill their vacant position, while still protecting the safety of the company?
Some believe the answer is to create a carefully drafted policy regarding applicants with criminal records, which consider the nature of the crimes on their record as well as the scope of employment within which they are being considered to work.[9] For example, the policy might allow for no more than two misdemeanors such as DUIs, as misdemeanors are a less serious type of crime.
Such a policy is imperfect and would not likely apply to each situation evenhandedly. First, whether or not the occurrence limit is met, each charge should be considered within the applicant’s potential scope of employment.[10] Continuing with our hypothetical policy, the applicant may have four DUIs but offers substantial talent with knowledge of bookkeeping software that a company uses. There may not be many applicants with the knowledge of how to operate this system, as perhaps it is complex. The employer might consider hiring this applicant even though he is over the two-misdemeanor limit, because driving would not be within the scope and nature of his employment.
On the other hand, if an applicant has only two DUIs, his record does not breach the occurrence limit of the company’s policy. However, if he is applying for a job to drive a truck and transport goods across the country, the employer might be more skeptical about hiring the applicant for this job, as his charges fall within the scope and nature of the job.
Alternatively, say the same applicant’s record has only one DUI. If the applicant is applying for the same cross-country driving job, shouldn’t the employer bar him from employment? But, upon further research, the employer discovers that this applicant’s one DUI occurred some 20 years ago when the applicant was 21 years old, and the applicant has had a spotless record since then. In this scenario, the employer might chalk it up to the applicant’s youth, consider 20 years of maturity, and consider hiring the applicant. The employer might also hold a strict DUI policy and not consider the applicant for the position.
The hypothetical situation shows the rat’s nest of information an employer can be required to dig up and consider when applying a standard policy. When it comes to jobs with high turnover rates, some may question the efficiency and overall value to the company of making those individual investigations.
Additionally, other consequences may exist by hiring those with criminal records.
Two common arguments are: increased crime in the workplace and the affect on current employees.[11] Some employers worry that with high recidivism rates of convicted criminals, hiring convicted criminals into their workplaces is a potentially dangerous move and should not be considered lightly.[12] Some others consider whether an employer should even be required to take the great pains necessary in balancing the rights of the current employees to know who their coworkers are on the one hand, with the right of an applicant to have his past remain in the past on the other hand.[13]
Whichever path employers choose to follow, this is undoubtedly a tough situation. Should convicted criminals be given a second chance to live out the “American Dream,”[14] or should their past bar them from some or all opportunities?
Sources
[1] Adele Peters, It’s Hard for People with Criminal Records to Get a Job-This New Job Site Can Help, https://amp.fastcompany.com/40448610/its-hard-for-people-with-criminal-records-to-get-a-job-this-new-job-site-can-help (August 4, 2017)
[2] Doug Horn, Hiring People with Criminal Records: Arguments for and Against, http://blog.recruitifi.com/hiring-people-with-criminal-records-the-arguments-for-and-against (January 9, 2015)
[3] Id.
[4] Lewis Maltby, How to Fairly Hire Applicants with Criminal Records, http://www.diversityinc.com/legal-issues/how-to-fairly-hire-applicants-with-criminal-records/ (August 24, 2011)
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Doug Horn, Hiring People with Criminal Records: Arguments for and Against, http://blog.recruitifi.com/hiring-people-with-criminal-records-the-arguments-for-and-against (January 9, 2015)
[12] Id.
[13] Id.
[14] Id.
