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Many Employers Could Benefit from Being Felon Friendly

02.15.2017

Around the time when former President Clinton was facing impeachment, my law school classmates and I were basking in the glory of having our own law review office tucked away in a musty basement corner. Taking a break from writing an article, two of us stumbled across a website called “Meetaninmate.com” (don’t ask). Yes, that was meet an actual inmate from jail dot com whose dating preferences were spelled out along with their favorite “in-the-big-house” pastime. We could email and chat with our very own inmate and learn more about the criminal defense system. To a bunch of sleep deprived, broke law school students, inmates were a study in criminal justice, not someone who may be a beneficial member of the business society. Wow, did we get that one wrong. Felons should be considered as potential employees in many situations, especially by temporary employment agencies and the companies that contract with these agencies.

Look around you…. we are often defined by others because of where we live, what we do, and who we call our friends. Today with the rampant use of social media for everything from connecting with the person who pulled your hair in the second grade to narcissist selfies, so many people air their every thought and move to the entire internet audience. The internet has become a public research tool for some users to scrutinize others and make assumptions. The internet also is a place to locate public records of arrests and convictions. Employers need to remember (and arrestees and felons need to know) that the internet fishing process CANNOT be used as a standalone screening method to exclude an applicant.

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Illinois law prohibits employers from inquiring about criminal records that have been sealed or expunged. Additionally, Illinois law prohibits employers, or any agent of an employer, from considering or inquiring into a job applicant’s criminal record or history until the individual has been determined qualified for the position and notified of an impending interview, or, if the applicant will not be interviewed, until after a conditional offer of employment is made. 

Illinois also forbids employers from asking about arrests. Employers may not use the fact of an arrest as a basis for employment decisions, including hiring and retaining employees. However, this doesn’t prohibit employers from using other means to determine whether the applicant actually engaged in the conduct that led to the arrest.  

There are two federal laws that provide some protections for applicants with criminal records. The Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. Criminal background checks may include errors, such as incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, information on convictions that have been expunged, multiple listings of the same offense, and even records that belong to someone else.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:

  • Get the applicants written consent ahead of time;
  • Tell the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report;
  • Notify the applicant after the employer makes a final decision not to hire him or her based on the information in the report. 

Firms that run background checks also have obligations under the FCRA. They must take reasonable steps to make sure that the information they provide is accurate and up to date. If an applicant disputes the contents of the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform the applicant and any other person or company to whom it has provided the report.

Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might face claims of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining how employers can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

  • the nature and gravity of the criminal offense or conduct;
  • how much time has passed since the offense or sentence; and
  • the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on). 

And, the EEOC has said that employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

I review hundreds of criminal backgrounds a year for temporary employees looking to be assigned to a particular company.  The companies have realistic guidelines of what types of convictions they will not accept for a certain look back period. We try to place as many people as we can whom want to work. Work provides a routine, a pay check, a sense of worth and contribution.  We have placed numerous with people criminal convictions to work, and not one single person ever displayed “criminal tendencies” while at work.  Furthermore, employers may receive a Work Opportunity Tax Credit in many circumstances for hiring people with convictions.

Leave the assumptions at the door and get the facts, you may be pleasantly surprised. 

 

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About the author:

Bethany Drucker is an energetic attorney whose primary professional focus and expertise is in employment law.  Bethany is admitted in good standing to practice law in New York and Illinois and has a public sector background which includes detecting and fighting fraud and corruption. Many of the cases Bethany worked on resulted in federal indictments.  Bethany has an undergraduate degree from Boston University (1994) with a Bachelor’s of Science in Communications and a Juris Doctorate from Hofstra University (2001).  After she graduated college, while in her early 20’s, Bethany independently opened two businesses on Long Island, NY.  Problem solving compliance and/or EEOC related issues is what she does as she helps others resolve concerns no matter how small or large.  Bethany is the corporate counsel for Azimuth LLC and A.S.G. Staffing, Inc.  Bethany welcomes topics to address and problems to solve.  Feel free to email her at bdrucker@asgstaffing.com should you like her to write about a particular employment law related topic.