Employment Background Checks and Recidivism: Is there a connection?

According to the Department of Justice, “Recidivism is measured by criminal acts that resulted in the re-arrest, re-conviction, or return to prison with or without a new sentence during a three-year period following the prisoner’s release.”

The U.S. Department of Justice estimates that two-thirds of ex-offenders will be rearrested for new crimes within three years of release, and about 40 percent will return be re-imprisoned. (That number hovers over 60 percent inCalifornia.) The fiscal impact of incarceration is estimated at more than $50 billion per year.

ban the box criminal recordsThe Ban the Box Movement

Those are astounding figures and many would have you believe it’s caused by employers “screening out” individuals with conviction records.  “Ban the Box” is a movement that has gained nationwide momentum and has even become part of the EEOC’s latest guidance, suggesting that employers generally avoid asking about convictions in employment applications.  The “box” refers to questions on a job application that inquire about an applicant’s criminal background.  The argument is that those questions serve as a barrier to employment for ex-offenders, thus leading them back to a life of crime.

Ban the Box proponents contend that removing questions about past criminal history from an employment application will enable formerly-incarcerated individuals to get jobs, which will contribute to public safety, and reduce recidivism rates.

So that’s it? We ban the box, start hiring ex-offenders, and our problems are solved? Employers provide the new recovery system for parolees?

Mike McCarty at Safe Hiring Solutions, a fellow background screening provider, wrote a thoughtful piece recently on the issue of background checks and recidivism in which he drew out several valid points.  First, he brings out the key issue that I believe everyone in our industry would agree with:  zero tolerance policies for criminal records are not a responsible approach to recruiting and hiring.  Likewise, blanket policies that tell employers they cannot ask about criminal records on an application or cannot use criminal records are irresponsible.

The “box” is not a panacea.

McCarty draws out the idea that we need a balanced approach, recognizing the victims of crime as well as the perpetrators. Will getting a job prevent an individual from going back to prison? If married with personal responsibility, a commitment to change, the right role models, and other types of support it’s definitely possible but we’ve got to stop thinking of ‘ban the box’ and other such legislation as a panacea.  It takes a balanced and holistic effort.

Damned if you do; damned if you don’t.

Let’s not overlook the fact that employers are responsible for providing a workplace that is safe, secure, and free of violence.  In many cases, hiring an individual with a criminal record is a risk too great, even unallowable by law in some instances.  Waiting too late in the hiring process to find out that the individual applying for your camp counselor job has a violent past doesn’t save time or money in the hiring process. Instead, it is a waste of time.  School teachers, medical professionals, bank tellers, childcare providers, these are obvious roles where a criminal record should be discovered early. And there are many other roles in this boat.

The latest 2012 EEOC Guidance on the use of criminal records, along with Ban the Box legislation, and myriad other federal, state, and local regulations cropping up to supposedly “remove barriers to employment” have raised the compliance bar higher than ever. The time, burden, documentation, and most of all money involved in doing things right might make one think an employer should ditch the employment screening altogether.  That is, until you remember that employers really have no choice in this matter.

Employers must protect themselves from negligence.

As usual, one of the best defenses is a good offense.  The fact is, employers who neglect to screen are typically presumed negligent when someone under their watch does wrong.  Penn State knows this lesson well and is now implementing tough new criminal record checks on both existing and new employees.

Until there is some meaningful tort reform, absent presumption of no-negligence for taking certain hiring measures (as with no-negligence statutes in Floridaand Texas), employers have no choice but to protect themselves.   It’s damned if you do; damned if you don’t. And because of this, it’s critical for employers to understand how to do background screening right.

Doing employment background checks the right way.

Many employers would hope for employment screening to be more simple than it is. “Give me a decision matrix and a report and it’s red light, green light, done.”  In fact, it’s not that simple and the EEOC is reiterating that in their latest guidance.  What they’re saying is if you try to make it that simple, the net effect is that you’re being discriminatory.  The challenge, of course, is that because the fact is that ethnic and racial minorities commit crime in disparate rates, our otherwise neutral policy on criminal records screening will automatically have disparate impact. There’s seemingly no way around it so the best we can do is our best.

EEOC individualized assessmentsIndividualized Assessments

Bringing individualized assessments into the mix is something the EEOC has recommended and something employers really should be doing anyway.  At Proforma, we’ve been promoting individualized assessment for years as a best practice approach. We’ve been helping our clients meet these now-requirements for a long time.  Think about it: At the end of the day, two equally-qualified applicants with the same criminal offenses will have them for different reasons. In the case of two people with DUIs applying for a position, what if one barely registered the legal limit and the other almost died from alcohol poisoning?  Or how about the case of criminal records where one applicant had a criminal record from 7 years ago when he was 22 and another had one from 6 months ago. Clearly situations are different and require individualized approaches.

Employers should be taking into account the nature and the gravity of the offense, the length of time since the offense took place, and the nature of the job being sought. Ask yourself, “Is it foreseeable that this behavior is such that it renders someone unfit to be in my workplace?”

The bottom line is this: Yes, jobs are important. Yes, workplace safety is important. Yes, reducing recidivism is important.  Now let’s take a realistic and balanced approach instead of putting all of our eggs into one box.


background screening kit

About MichaelGaul

Michael is a results-oriented marketing executive with over two decades of experience in employment screening, physical security, and business process management. Michael has deep experience in human capital risk management and a passion for educating business leaders and HR professionals on strategies that tangibly protect their interests. Michael serves on the Board of the Secure Cash and Transport Association (SCTA) and is a member of the Professional Background Screening Association (PBSA), and the American Society of Industrial Security (ASIS).
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