One in three Americans has a criminal history. In many cases, this has stopped people from getting a job, with employers fearing that the applicant would act unscrupulously or jeopardize the business in some way.
However, thanks to a slew of anti-discrimination laws taking hold across the country, things are shifting. Understanding that those with a criminal past need a chance to support themselves and achieve their dreams, lawmakers are offering protections to those who face barriers to employment due to their criminal convictions.
If you’re an HR professional, it’s important to pay attention to the issue of discriminatory practices so you know what changes you need to make in your policies and practices to stay in compliance.
For you, this may include understanding what facets of a candidate’s conviction you must consider in your hiring process, creating written policies or auditing existing ones, and learning to separate hiring from the criminal background check process.
Employment Protections Across the 50 States
Federal protections do exist for those with criminal histories who are seeking employment. For example, the Fair Chance to Compete for Jobs Act, which was passed in 2021, stops federal agencies and contractors from inquiring about criminal backgrounds until after a conditional offer is made.
The Equal Employment Opportunity Commission has issued guidance that interprets Title VII of the Civil Rights Act of 1964 as banning criminal history-related discrimination unless the employer can prove a business necessity for doing so. Several states have also passed laws protecting those with a criminal background from being discriminated against in employment.
Additionally, 37 states have adopted “ban the box” laws. These prohibit employers from inquiring about criminal history, either verbally or through a background check, early in the hiring process. The concept of “ban the box” was derived from the common practice of employers asking applicants to check a box to determine whether they have ever been charged with or convicted of a crime.
These laws do not always cover private businesses. In fact, only 15 of the 37 states that have “ban the box” laws extend the same protection to candidates who fill out applications with private employers.
Many states also have laws that prohibit employers from disqualifying candidates unless the conviction is related to the nature of employment. California’s Fair Employment and Housing Act takes things further by stopping public or private employers from considering non-conviction records or records that have been dismissed. Additionally, employers must notify candidates of denial and give them a chance to respond.
The Gainesville, FL, Fair Chance Hiring Ordinance
Federal and state governments aren’t the only ones that protect those convicted of a crime. Many local jurisdictions are also following suit. Gainesville, Florida, is one of the most recent examples.
According to the city’s Fair Chance Hiring Ordinance, employers with 15+ employees who do their primary work in Gainesville during four calendar weeks of the current or previous year cannot ask about or consider a candidate’s criminal history until after a conditional offer has been made.
Additionally, an employer is not allowed to take adverse action against an employee because of their criminal history unless they have determined in an individualized assessment that it makes them unsuitable for the job.
When adverse action is taken, employers must inform the employee, show which history records were used to make the determination, and allow the employee to respond and provide context. If a candidate is disqualified based on their criminal history, they must be notified in writing.
What HR Professionals Need to Know — and Do — About Criminal History-Related Discrimination in Recruitment
Many employers believe that it is a significant risk to hire someone with a criminal record. However, HR professionals must consider a number of things about a candidate before denying them a position, including the nature of the conviction and its relationship to the position, how long it’s been since the offense and the conviction, and any context the candidate may provide.
These considerations not only allow you to display a sense of compassion but also help you comply with the law. Additionally, HR professionals need to create concrete hiring policies about how the company will deal with candidates and employees with criminal histories. If you already have one, audit it regularly to ensure it complies with the latest laws.
Finally, to follow the law and limit negative candidate perceptions, HR professionals may want to refrain from asking about criminal histories in interviews and have someone separate from the management team conduct background checks on candidates. This limits what managers know about employees’ backgrounds and reduces the likelihood of discrimination.
Ensuring Fairness in Hiring at Every Stage of the Process
Regardless of an employer’s views on candidates with criminal convictions, it’s important that all understand what federal, state, and local labor laws require when it comes to the hiring process. Once you know the law, it’s crucial that you follow it.
There may be more work involved in balancing compliance and risk management. However, keep in mind that the effort is always worth it. Not only does it keep the company out of hot water with regulatory agencies, but it positions your company as one that truly cares about candidates and employees.Ready to ensure compliance and foster a fair hiring process? Schedule a demo with VirgilHR today to learn how our solutions can help you stay up-to-date with the latest anti-discrimination laws and best practices.
