Use of Conviction and Arrest Records in Hiring Decisions

While I practice in employment law, and advise clients on the use of conviction records in making hiring decisions, the issue recently struck me personally. A relative committed a felony as a teenager. He served 15 years in prison and was released several years ago. He eventually found night shift work in a manufacturing facility.

After his wife obtained a day job with full benefits, his hours interfered with their shared child care duties. He quit his job after working there about a year, leaving on good terms.

A few months later, he and his wife worked out other child care arrangements, and the same position was open at his former employer. In spite of his previous work, the company required him to fill out a new application. The prior application asked whether he had been convicted of a crime within the last five years, and he honestly answered no. This time, however, the application asked whether he had ever been convicted of a crime, and he honestly answered yes. After learning the details, his former supervisor still wanted to hire him back, but was overruled by upper management.

Had the relative been Black or Hispanic, the company’s apparent automatic exclusion of anyone with a criminal history would likely violate Title VII of the Civil Rights Act of 1964, which bars employers from discriminating on the basis of race, color, religion, sex and national origin. The EEOC and courts have found blanket exclusions to have a disparate impact on the hiring of minorities.

Approximately 700,000 individuals are released from state and federal prisons each year. Obtaining gainful employment is widely acknowledged as an important component of integrating ex-offenders back into society and preventing recidivism.

Electronic sources permit easy access to conviction data, as well as arrest and related non-conviction data. The Administrative Office of Pennsylvania Courts (AOPC), through Pennsylvania’s Unified Judicial System web portal, provides free public access to criminal court docket sheets.

The use of this data, many times compiled by commercial criminal-background screening companies, creates two issues. First, according to the AOPC’s own data, its records contain a significant number of errors. Second, under the state’s Criminal History Record Information Act, only felony or misdemeanor convictions are to be considered by an employer in making hiring decisions, and then only to the extent that those convictions relate to the applicant’s suitability for the position sought. This prohibition, however, only applies to the consideration of information covered under the Act.

A 2012 EEOC Enforcement Guidance provides that an employer does not violate Title VII if its criminal history exclusions are “job related and consistent with business necessity.” The most important method by which an employer can meet this standard is by developing a targeted screening process for job applicants with criminal histories that considers the nature of the crime, the time elapsed and the nature of the job for which the person is applying.

As a result of these issues, there has been a growing national movement to “ban the box” inquiring about past criminal convictions on initial job applications. As of 2013, 10 states and 50 local jurisdictions had adopted such policies. In January, Philadelphia joined their ranks.

These state and local laws diverge as to the employers covered; when an employer can lawfully conduct a background check; the factors an employer must use to guide its consideration of criminal history; and the disclosures that must be made. Philadelphia’s law, for instance, prohibits employers with 10 or more employees from including questions on job applications inquiring into criminal convictions and from asking about ex-offender status during a first interview. Such questions are allowed during a follow-up interview.

A weaker version of this type of law was introduced this year in the Pennsylvania Senate. The Arrest Record for Employment Act would prohibit an inquiry into an applicant’s arrest record concerning any matter in which the applicant was found not guilty or for which charges were withdrawn. The law would apply to the state, its political subdivisions and any private entity employing four or more persons, with certain exceptions.

Richard Stokes is a member of the Harrisburg Chapter of Decarcerate PA. While he and Decarcerate PA lobby for such laws, he ideally would like to see employers adopt these policies on their own, as did Target by adopting “ban the box” on its initial hiring documents.

Many federal and state laws exclude certain ex-offenders from certain jobs, such as working with children. However, in addition to being illegal in many circumstances, automatically excluding an entire segment of the population from employment due to a past crime or arrest, without regard to the nature of the offense, how long ago it occurred and the applicant’s life experience since then seems counterproductive to reducing crime, as well as the goal of achieving a just society.