Seven years ago, employers were so reluctant to hire workers with criminal backgrounds that the Equal Employment Opportunity Commission felt the need 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. “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.”
Distinctions between different kinds of crimes committed by applicants are important. Here is advice Molho’s law firm gives its employer clients.
Drug Crimes: 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. Drivers and forklift operators cannot be addicted to opioids. Employers can 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.”
Violent Crimes. The most salient fact to consider when evaluating an applicant convicted of a violent crime is when it 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.
“The recidivism rates for homicide, for example, are lower than any other crime,” Molho points out. However, he admits that when it comes to violent crime against women – rape, sexual assault, domestic battery – this can be difficult to integrate into certain workplaces.
“Many employers tell us that their work force 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.
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 an applicant, 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.”
