Interviewing and Hiring People with a Criminal Record:
Ten Best Practice Tips
First Best PracticeTip:
To ensure that you do not consider information that is no longer relevant, do not ask about or consider convictions that occurred more than 7 years ago (or, if the person was incarcerated, 7 years after release). Limit any background search to this 7 year period.
This practice incorporates the best research, which shows that a criminal conviction that is more than 7 years old is not predictive of a person’s likelihood of committing a new crime. The relevance of a conviction within this 7 year time period will depend on the nature of the job sought, the nature of the conviction, and the characteristics and rehabilitation of the job applicant. Therefore, for convictions within the 7 year time period, it is important to follow the remaining best practices.
Second Best Practice Tip:
Defer asking questions about the applicant’s criminal record or conducting a criminal background check until after a conditional job offer has been made. If the background check discloses a conviction, provide the applicant an additional opportunity to discuss the conviction and subsequent rehabilitation.
Many private employers, municipalities, and states have now “banned the box” – that is, removed the question about criminal history from the initial job application and deferred asking about convictions until later in the application process. Doing so allows the applicant to be considered on his or her merits prior to having to disclose a criminal conviction.
Third Best Practice Tip:
Any question about a job applicant’s conviction history, such as “have you been convicted of a felony within the past 7 years?” should be followed by this caveat:
Answer “NO” if your conviction:a) was sealed, expunged, reversed on appeal, or if your charge was dismissed;b) was for a violation, infraction, or other petty offense such as “disorderly conduct”;c) resulted in a youthful offender adjudication or juvenile delinquency finding; ord) if you withdrew your plea after completing a treatment program.
Under the New YorkHuman Rights Law, job applicants are not required to disclose any arrests or convictions that have been sealed or that have resulted in Youthful Offender adjudications. By simply asking the question, “Have you ever been convicted of a crime?” employers are inadvertently asking some job applicants to disclose information that is confidential and that under the law, they are not required to disclose. To avoid confusion and to fully comply with the law, employers should frame the criminal history question in a manner that makes it clear that the applicant is not being asked to disclose information that is protected under the Human Rights Law.
Fourth Best Practice Tip:
To interview an applicant about past criminal history: 1) consider the conviction charge, not the arrest charge; 2) let the factors in Correction Law § 753 dictate how much detail about the conviction you need to know; and 3) do not limit the discussion to the conviction, but instead discuss what the applicant has done since; encourage the applicant to discuss his or her rehabilitation and commitment to desisting from crime.
While convictions may be reliable evidence of criminal conduct, arrests are not. Therefore, it is best to consider only conviction charges. The factors in Correction Law § 753 dictate the extent of information you need to know about the conviction. These factors also tell employers that it is important to ask applicants with a criminal record about their rehabilitation and their commitment to desisting from crime and living a law-abiding life.
Fifth Best Practice Tip:
Remember that the factors in Correction Law § 753 provide a useful framework for considering the applicant’s criminal record in light of the job sought. Avoid simplistic mathematical formulas; instead consider all of the factors in their totality.
As one New YorkState hearing officer stated, considering the factors in Correction Law §753 “is not a mechanical function and cannot be done by some mathematical formula.” In a very practical way, the factors guide employers in thinking about the implicationsof hiring a job applicant with a criminal conviction for a certain job. Depending on the nature of the job sought, the nature of the conviction, and particular circumstances of the applicant, some factors may have more relevance than others – so it is not as simple as weighing factors against each other. Rather, the factors are best considered in their totality.
Sixth Best Practice Tip:
Comply with and use the procedures set forth in the Fair Credit Reporting Act (FCRA); this is the best way to ensure that your process for conducting and considering criminal background checks does not lead you to inadvertently engage in an illegal discriminatory practice. Doing so will also ensure that you do not needlessly decline to hire an otherwise qualified job applicant.
While some criminal background checks are better than others, the reality of our criminal justice system is such that all types of criminal records and background checks have alikelihood of containing errors. Compliance with FCRAprocedures is the best way for employers to ensure that they do not mistakenly rely on mistaken information (and thus, commit an unlawful discriminatory practice); it is also fair to job applicants. Thus, when an employer uses a background check, the employer should, at a minimum: 1) inform the job applicant that a background check is being conducted; 2) provide the applicant a copy of the background check received; and 3)give the applicant an opportunity to identify and correct errors or otherwise explain what is listed on the background check.
Seventh Best Practice Tip:
Do not assume that a discrepancy between what the applicant and background check disclose means the applicant is lying; also do not assume that all mistakes can be easily corrected.
The criminal justice system is complex and confusing. Experience shows that while people with criminal histories may honestly and accurately disclose the behavior that led to their arrest, they are often confused about the resulting conviction, and as a result, do not always disclose this information accurately. Moreover, a discrepancy between what the job applicant discloses and what the background check says can be the result of an error on the background check. Employers who assume that an applicant is lying may miss out on hiring a well-qualified and motivated employee.
Eighth Best Practice Tip:
Because many applicants are confused about what their criminal record is and what they are required to disclose to employers, consider not asking applicants to self-disclose their criminal records. Instead, after a background check is conducted, share a copy with the applicant and use this as a source for any necessary discussion about the applicant’s criminal record.
Refraining from asking applicants to self-disclose their criminal records and instead using the same information – the background check – as the basis for any necessary discussion about an applicant’s criminal record will avoid the ill-will that follows when an applicant unintentionally provides misinformation about his or her criminal record when asked to self-disclose. This is the process that the state of Massachusetts has adopted.
Ninth Best Practice Tip:
To fully comply with Correction Law Article 23-A, make an individualized decision in accordance with the Correction Law § 753 factors; do not subscribe to any background check service that issues recommendationsabout hiring the applicant.
Some background check companies now offer a service in which the background check includes a “hire/do not hire” recommendation, or red (“do not hire”), yellow (“caution”), or green (“OK to hire”) flags. Such recommendations are based on the criminal record revealed in the background check, which may be inaccurate, without taking into account other factors you are required by law to consider. Following such recommendations would be unlawful, since Article 23-A requires that employers make an individualized assessment based not only on the conviction charge(s), but also the circumstances of the conviction, the nature of the job sought, and circumstances particular to the applicant.
Tenth Best Practice Tip:
Document the decision you made and how you considered the factors under Correction Law § 753 (in Article 23-A) so you obtain the protection from negligent hiring claims afforded employers under Executive Law § 296(15) (the Human Rights Law).
Employers who comply with Article 23-A in hiring a job applicant with a criminal record are afforded some protections from negligent hiring lawsuits under New York law. Therefore, document your hiring decision in accordance with Article 23-A.