I reviewed an employment application that asked applicants if they had “ever committed a felony?” It sought a “yes” or “no” response, without further explanation. My first reaction was . . . “you can’t ask that!” But then I realized that the application was not asking about arrests or convictions (more about that later), but about the commission of a crime. I wondered whether applicants would answer the question honestly . . . and then, whether the applicant would even know?
I suppose it is permissible to ask if an applicant had “committed” a crime. Many states have protections for those who have been arrested and/or convicted—but those don’t address the applicant’s voluntary admission that something was done that, perhaps, they were never even arrested for, let alone convicted of. For example, New York precludes employers from considering arrests not then pending and identifies specific procedures that must be followed under Article 23A regarding the hiring of convicts, with a goal of placing more offenders in jobs. New Jersey and Massachusetts have ban-the-box rules, precluding asking about criminal records early in the hiring process.
Even in states with no direct protections for those arrested, the EEOC finds the use of arrest records to be a potential indicia of discrimination, given the disproportionate number of minorities arrested and the fact that an arrest does not mean that the individual had actually done anything wrong. Even conviction inquiries should be asked in context, considering the length of time since a conviction, the nature of the crime including its seriousness, the relationship of the crime to the potential job, and any rehabilitation. Many states govern how far back questions about convictions can reach, and whether it can cover minor offenses. There is also an overarching public policy to put convicts back to work. After those consumers of the penal system have served their time, it is in everyone’s best interests that they re-join society and become contributing citizens. How is this possible if no one will hire a convict?
Consider Jean Valjean (of Victor Hugo’s Les Miserables) who served a 19 year prison sentence for stealing a loaf of bread for his family in hard times, and then had to carry a yellow passport marking him as a convict. What if Jean Valjean applied for a job with your company five years after being released? Let’s say you are looking to hire data entry clerks. They enter customer orders received by mail into the database for processing and tracking, including the customer payment method (credit card number, banking information, etc.). Let’s presume that Jean was trained on computers in prison and was then employed in the prisoner tracking department, entering and updating data regarding prisoner court dates, parole dates and upcoming release dates. After his release, he worked for a shipping company doing data entry until he was recently laid off in a reduction in force. Your company has a high turnover in the data entry department and generally, if an applicant can breathe and type, he or she is hired. Would you hire Jean Valjean?
A prudent employer would call their employment lawyer to discuss the situation. If you called me, I’d talk you through the situation (good lawyers should find out what their clients think about the situation as law is an art, not a science, and many factors play into these decisions). But, in the end, I’d probably tell you that there are likely few legal risks in hiring Jean. Why? His original crime was one of desperation, with a good intention (feeding his family) behind a wrongful act (stealing). He does not appear to be violent or a danger to himself or others. He’s held a job and kept out of trouble for five years, and (notwithstanding his lengthy incarceration), the original crime was fairly minor. And—you hire anyone who breaths and can type, and he’s apparently qualified.
While you could argue that Jean was convicted of theft, and would have access to your customers’ financial information, I would suggest that steps could be taken to determine if that was a relevant factor now. For example, a background check could help determine whether he was currently in dire financial straits. The original crime does not indicate a propensity to steal, but a desire to feed his family. The company can also put systems and cross-checks in place to guard against theft of customer financial information, including policies that are enforced, Confidentiality Agreements, and procedures for handling the order paperwork. The bottom line, however, is whether Jean is any more likely to steal your customer’s information than Sally, who has no criminal history. This employment lawyer cannot answer that question. And, the decision of who to hire is for the company to make.
This is an arena where employment law intersects with business practicalities, the need to get a job done, and a public policy of reintegrating convicts. From a purely employment law aspect, HR managers need to understand the law in your jurisdiction and the requirements for dealing with arrestees or convicts so that no requirements are violated and risks are minimized. From a pragmatic viewpoint, the question is—who is the right person for the job, and for your company? Once the legal aspects are covered, the company has latitude to determine what other factors are important when making hiring decisions. Sometimes, as here, that’s not so clear cut.