The hiring process can be challenging for employers and jobseekers alike. Employers struggle to match their needs to the skills and experience of applicants. Jobseekers struggle to make employers understand why they’re right for the job. That dual struggle gets even more complicated when a criminal conviction is added to the picture. 
According to figures in a report from the Council of State Governments Justice Center, some nine million people are released from jail every year. In 2010, 708,677 sentenced prisoners were released from state and federal prisons, and 4.9 million individuals were on probation or parole. Many of those people will have trouble finding employment.
In September, the center released a white paper titled “Integrated Reentry and Employment Strategies: Reducing Recidivism and Promoting Job Readiness.” The paper notes that most of the millions in U.S. jails and prisons will at some point return to the community. It also says that incarcerated individuals report that getting a job after their release will be key to their ability to stay away from crime.
Getting hired
Gaining employment is greatly complicated as a result of having a criminal history. The Justice Center has developed a “Reentry and Employment Toolkit” to help employers and jobseekers overcome problems caused by a criminal past. Part of the toolkit focuses on hiring incentives for employers, including the Federal Bonding Program and the Work Opportunity Tax Credit.
Federal Bonding Program: This program, established by the U.S. Department of Labor, provides fidelity bonds to employers that hire people classified as hard to employ, including ex-offenders. The program provides insurance to protect employers against employee dishonesty and covers any kind of stealing, including theft, forgery, larceny, and embezzlement. The program differs from commercial fidelity bonds because it covers risky job applicants deemed not bondable by insurance companies.
Work Opportunity Tax Credit: This program is a federal tax credit employers can get for hiring people from certain target groups, including individuals who have been convicted of a felony whose hiring date is not more than one year after the conviction or release from prison. The maximum annual credit an employer can receive for hiring ex-felons is $2,400 per employee.
Even with incentives, employers may be reluctant to hire someone with a criminal history. A question-and-answer sheet from the Program for Prison Reentry Strategies at the Bluhm Legal Clinic at Northwestern University’s Law School looks at the question, “Why would a business want to train and hire someone coming out of prison?” In addition to the tax credit, the answers presented include:
- Before being hired and without any employer obligation, returning prisoners can be trained and prepared to apply skills that others in the labor force don’t have.
- Prisoners may have received education or skills in prison that can be put to use for a particular company.
- Many returning prisoners are highly motivated to complete parole obligations and succeed at a job.
- Returning prisoners are often accountable to parole officers, who help them meet work obligations.
- Employers hiring ex-offenders contribute to a returning prisoner’s ability to benefit the community economically and socially.
OK to ask about criminal record?
It’s one thing for employers to hire someone they know has a criminal record, but it’s another thing to ask applicants about criminal history. In 2012, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on employer use of arrest and conviction records. The guidance points out that depending on how they use criminal history, employers can run afoul of the antidiscrimination aspects of Title VII of the Civil Rights Act of 1964.
The EEOC guidance makes a distinction between arrest and conviction records. “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity,” the guidance summary states. “However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
The guidance states that unlike arrests, convictions “usually serve as sufficient evidence that a person engaged in particular conduct.” However, “there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.”
The guidance also addresses “disparate treatment” and “disparate impact” as they relate to Title VII. An employer may face disparate treatment liability if it treats criminal history information differently for different applicants or employees based on their race or national origin, the guidance summary states. For example, if an applicant of a certain race is disqualified because of criminal history while an applicant of a different race with a comparable criminal history is not disqualified, the employer may be guilty of disparate treatment.
Even if an employer has a neutral policy that excludes individuals based on criminal conduct, it can face disparate impact liability if the policy disproportionately affects individuals in a category protected by Title VII and the policy isn’t job related and consistent with business necessity.
“National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” the guidance summary states. “The national data provides a basis for the [EEOC] to investigate Title VII disparate impact charges challenging criminal record exclusions.”
The guidance summary points out two circumstances in which the EEOC says employers will meet the “job related and consistent with business necessity” defense:
- “The employer validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures …”; or
- “The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. … The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”