Last month a concerned client called the ZM Ventures office and asked:
“We’ve hired an employee and he told us about a DUI conviction from 5 years ago. Will his background-check uncover this conviction, and will we have to let him go as a result?”
There are limits to the circumstances in which employers can take a candidate’s past criminal convictions into account when deciding whether to employ them. Given the client’s call last month, the effect of convictions on job offers is the subject of this blog article.
Although there is no federal law that clearly prohibits an employer from asking about arrest and conviction records, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups. As a result, employers generally should not use an applicant’s criminal history as an absolute bar to employment.
There are two important pieces of legislation that human resources must consider. The first is the Civil Rights Act. The Equal Employment Opportunity Commission (EEOC), the government entity that enforces this Act, states that federal law does not prevent employers from asking about a potential worker’s criminal history. But it does prevent discriminating against that person when deciding whether to hire them in some cases.
Title VII of the Civil Rights Act does not allow disparate treatment of people with similar criminal histories. If a Caucasian person has a similar felony conviction as an African-American person, employers must weigh both of these convictions equally and not discriminate based on Title VII-protected characteristics, such as race, nationality, sex or religion.
Title VII also does not allow disparate impact when making hiring decisions on persons with a criminal history. Employers may not consider a person’s criminal history if it significantly disadvantages Title-VII protected people. Disparate impact does not consider if an employer intended to discriminate. It considers if a hiring policy disproportionately impacts a Title-VII protected group, regardless of intent.
For example, a policy that refuses to hire all ex-felons may be considered discriminatory under the Civil Rights Act because certain ethnic groups may have higher felony conviction rates. Such a policy, therefore, would disproportionately target members of that ethnic group. In the case of disparate impact, employers must have a policy that in some way takes into consideration the nature of the crime, and the amount of time that has elapsed since conviction, and how it relates to the job in question.
The First Step Act, signed by President Donald Trump on December 21, 2018, seeks to reduce sentencing duration and recidivism. This may have an impact on hiring policy as it will reduce the time a convict spends in prison; which businesses must take into consideration during the hiring process.
Besides federal regulation, several state laws limit the use of arrest and conviction records by prospective employers. These range from rules prohibiting an employer from asking applicants any questions about arrest records to those restricting an employer’s use of criminal history information in making employment decisions.
With these types of delicate and complex employment questions, it is wise to consult with your onsite HR professional or contact a trusted resource, the HR practitioners at ZM Ventures, Inc
Marie Zolezzi, CEO and Founder of ZM Ventures has contributed to the HR functions of many large firms in the Silicon Valley, Intermountain West and the Pacific Northwest. Marie is a skilled HR practitioner with unique expertise in HR business partnering, conflict resolution, employee investigations, one-on-one coaching and organization management. She is also a skilled board advisor to Board of Directors needing input from an HR thought leader. To contact Marie Zolezzi, send an email to firstname.lastname@example.org.
Lopez. “The First Step Act, Explained.” Vox, Vox, 6 Feb. 2019, www.vox.com/future-perfect/2018/12/18/18140973/state-of-the-union-trump-first-step-act-criminal-justice-reform.
Pre-Employment Inquiries and Arrest & Conviction, www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm.