Diversity & Inclusion

Fair Chance Business Pledge offers new way to evaluate applicants with criminal records

by Kaitlin L.H. Robidoux

The White House is urging businesses to take the Fair Chance Business Pledge and commit to providing individuals with criminal records “a fair chance to participate in the American economy.” The idea behind the initiative is that individuals with a criminal history have trouble finding employment, and many communities are hurt because of the lack of gainfully employed residents and good role models. Because nearly one in three adults—almost 70 million Americans—has a criminal record, a large number of people and communities are affected when individuals with a criminal history cannot find employment.  Young man in handcuffs

More than 100 organizations have taken the pledge, including American Airlines, Coca-Cola, Facebook, Google, the Hershey Company, Johns Hopkins Hospital and Health System, Koch Industries, PepsiCo, Prudential, and Starbucks, to name just a few. So if your company is interested in taking the pledge, what considerations should you think through?

Should you do it?

The pledge simply commits your organization to providing applicants with a criminal history, including formerly incarcerated people, a fair chance. If you take the pledge, which you can do online (https://www.whitehouse.gov/issues/criminal-justice/fair-chance-pledge), you’ll see that there are other suggestions for how your organization can help the cause. One suggestion is taking action in your local community—for example, by supplying resources like business clothes, cell phones, Internet access, and childcare services; offering support to regional reentry facilities; and providing mentors to children with incarcerated parents.

Another way to take action is by promoting fair chance hiring practices. For example, you can make internships and job training available to people with criminal records or host a “fair chance and opportunity” job fair.

Another suggestion you’ll see on the website is “banning the box” by removing questions about criminal history from your initial application form. People with criminal histories may decide not to apply when they see such questions because they assume they won’t be considered for the job. Taking those questions off your application can keep that from happening. You can still ask questions later in the hiring process—for example, during an interview. And you can still run criminal background checks; just be sure to use a reliable background check provider to ensure you get accurate results.

Be careful, though. You don’t want to get dinged for your valiant efforts by getting hit with a lawsuit alleging you negligently hired a criminal. In many states, you can be sued for negligent hiring if someone gets hurt by an employee who is unfit for the job. Therefore, if your company takes the pledge and promotes fair hiring practices, you still should conduct reasonable investigations into employees’ backgrounds. The reasonableness of your investigation depends on the job at issue and the risk of harm or injury to coworkers or other people that could result from an unfit employee’s conduct. For example, you need to conduct a more thorough background investigation on an applicant for a caregiver position than on someone you want to employ stocking shelves.” Regardless of whether you take the pledge, it’s a good idea to train your HR staff on how to make fair—and safe—hiring decisions on job applicants with criminal records. The circumstances behind an applicant’s criminal history and current situation can be revealing, and you can train HR on what to consider when evaluating a job applicant. Factors to consider may include:

  • The type of offense the applicant committed;
  • The number and duration of offenses;
  • The applicant’s age and maturity at the time of the offense;
  • The length of time since the last offense;
  • The context in which the offense was committed;
  • The sufficiency of punishment and restitution;
  • Whether the offense was pardoned;
  • The applicant’s current attitude about the offense;
  • The applicant’s candor about the offense; and
  • Constructive activities and accomplishments after the offense.

Bottom line

We’ve seen a lot of violent attacks recently, and safety is nothing to sneeze at. Providing employment to people with a criminal history—rather than denying them employment opportunities—could actually reduce crime and make your community safer. On the other hand, you don’t want to inadvertently put people at risk by hiring an applicant who is unfit for the job, and you don’t want to create liability for your company, either. If you’re thinking of rewriting your employment application or reassessing your application procedure, it’s a good idea to consult with your attorney about which types of jobs you have and which types of criminal background investigations you need to perform.

Kaitlin L.H. Robidoux is an attorney with Steptoe & Johnson PLLC, practicing in the firm’s Bridgeport, West Virginia, office. She may be contacted at kaitlin.robidoux@steptoe-johnson.com.