Individualized Assessments of Applicants with a Criminal History

Introduction

Those convicted of felonies and/or misdemeanors know all too well that obtaining employment following a conviction can be challenging for applicants with a criminal history. Even in our modern society which tends to be more accepting of individuals with non-traditional backgrounds, a criminal conviction for even minor offenses can still raise eyebrows and cause individuals to be looked upon with suspicion. Because of this, criminal convictions have led some individuals into deep debt and problems associated therewith: even after they have completed their terms of incarceration and/or probation, many individuals are left with fines, court costs, and other costs that must be paid off to complete their sentences. When these individuals cannot find jobs to meet these expenses and other costs of living, it can cause a ripple effect in the person’s life that can lead to divorce or domestic troubles, bankruptcy, and additional crimes.

“Ban the Box” and Individualized Assessments

Recognizing the difficulties individuals with convictions face, the federal government recently launched its “ban the box” initiative. (The “box” referenced is the question found on many job applications which requires applicants with a criminal history to mark a specific box if they have been convicted of a crime.) This was an effort by the federal government to keep both public and private employers from using a person’s criminal history as an automatic bar to employment. Instead, employers are to take each individual’s circumstances into account in determining whether to hire the person. For workers with criminal convictions, this means that:

  • Criminal history must still be disclosed. Unless a conviction has been expunged and/or not otherwise required to be reported, job applicants must still answer questions about their criminal history truthfully and honestly. Purposefully failing to disclose a conviction can result in much more serious consequences than accurately reporting the conviction.applicants with a criminal history still need to disclose facts
  • The employer may not (in most circumstances) create an automatic bar to applicants with convictions. The main exception to this principle is where the employer can show that a bar on applicants with a criminal history like the applicants’ is narrowly tailored and necessary for the safe execution of job duties. For example, bars that prevent individuals from obtaining employment in the financial sector when they have been recently convicted of theft, robbery, or other similar crimes is likely an acceptable hiring practice.
  • The employer should consider the facts and circumstances of the applicant’s prior conviction(s). This generally means that as part of its hiring practices the employer must take into account the severity of a person’s prior crime(s), how recently the conviction(s) occurred, and any other mitigating or positive facts about the applicant in determining what weight, if any, to give to the criminal history of the applicant. If the circumstances warrant it, an employer may still refuse to hire a person with a criminal history.
  • The employer may consider giving the applicant an opportunity to explain his or her past. Before refusing to hire an otherwise qualified applicant, the better practice is for the employer to give the potential applicant the opportunity to explain his or her criminal history or otherwise respond to any concerns the employer may have. This gives the applicants with a criminal history an opportunity to point out any redeeming factors that he or she may have or to assuage the employer’s concerns.

The Future of the “Ban the Box” Program

As “banning the box” is adopted by more and more public and private employers, individualized assessments of applicants with a criminal history will also become more commonplace. While this will not sweep an applicant’s history “under the rug,” it will give deserving ex-convicts an opportunity to obtain meaningful employment and avoid some of the unintended and serious consequences of a criminal conviction.