Will banning the box really help former criminals get hired?

As I speak on background screening policy considerations and tools to SHRM luncheons and conferences, the question always comes up: Will banning the box really help former criminals get hired?

In my experience, removing the criminal history inquiry will neither help nor hinder former offenders in their job search. Despite what NELP, the EEOC, and other advocates for “banning the box” claim, few employers with a professional employment process are automatically banning candidates with any criminal history from employment.

However, delaying when an employer becomes aware of an applicant’s criminal history wastes the time (which equates to money) of both the employer and the applicant whose offense makes them ineligible for a specific position and makes the hiring process less efficient.

What should never happen is for an employer to find that an applicant is so charming during an interview that they disregard their company policies.

An affirmative response to the criminal history inquiry on the application should, after a review of the company’s carefully crafted policies, lead the employer to place the individual in one of three categories, assuming that they are otherwise qualified for the position:

(1) Eligible for hire

(2) Possibly eligible for hire – further review needed

(3) Not eligible for hire

Such a policy, defined before an open position is ever posted, removes much of the bias from the hiring decision. The policy should consider the risks associated with the position (the work environment; the kinds of access the position will have to information, assets, and people; and the job’s responsibilities), the nature and severity of the offense, and the time that has passed since the individual’s release from judicial or correctional supervision.

The first category, “eligible for hire”, doesn’t mean that the person will be hired or even that his offense should not be considered. It simply means that a single instance of the offense doesn’t, in and of itself, exclude him from consideration.

If a qualified applicant is available who has no recent criminal history and a solid employment history is available, that applicant may be preferable over an applicant with multiple minor offenses (public intoxication, theft by check, failure to appear, etc.) in recent years. The latter applicant is more likely to require more management effort and be less reliable than the former. In this case, the applicant was considered fairly against other applicants – he just wasn’t the best available choice.

The second category, “possibly eligible for hire – further review needed”, requires that the employer get more information from the applicant to understand the context of the underlying behavior before making a decision. For example, a three-year-old assault conviction might be a concern for a position dealing with the public in a retail situation. Before eliminating the candidate from consideration, the employer would be wise to understand what actually occurred. We recommend that an opportunity be given on the application for the applicant to provide this context information. Then, if the applicant is otherwise the best candidate for the position, the employer can verify the applicant’s story during the background check process.

The third category, “not eligible for hire”, would be reserved for those situations where the risks inherent to the position clearly outweigh the offense considerations. Recent violent offenses by those dealing with vulnerable populations, recent DWIs by would-be drivers or operators of dangerous equipment, or recent drug offenses by those seeking positions in a healthcare setting. The EEOC’s 2012 guidance on the use of criminal history when making employment decisions recognizes that there may be situations where the nexus between the offense and the job is such that an outright exclusion without further consideration might be appropriate. We believe that this should be limited in actual use.

It is important to note that every employer’s situation is unique. One employer’s experience may lead them to be more conservative while another employer’s business controls will allow them to take more risks with who they hire.

So, ban the box or don’t ban the box. Over all, it won’t really make a difference. I’m afraid, however, that it is the first step in making former offenders a protected class, removing employers’ abilities to make informed and carefully considered hiring decisions. That would be a real problem.

Finally, many applicants, including those without criminal histories, have a hard time finding meaningful work. I’ve found that many long-term unemployed people seek to blame employers’ assumed unfair practices for their difficulties. They believe that they weren’t hired due to their color, sex, or criminal history. Blaming someone else is always easier than taking a hard look in the mirror at the real causes of their lack of success.

 Imperative Information Group has developed tools to help employers thoughtfully incorporate these considerations into their employee selection process. If you’d like to discuss these, give me a call at toll free 877-473-2287. On June 16th, we’re offering a free webinar on this topic: Developing a Criminal History Evaluation Tool.  You might also check out our webinar on creating a legal criminal history inquiry.