Companies rethink hiring policies for former criminals

Destinee Evans was one of 637,411 people released from state and federal prisons in 2012.

After serving a two-year sentence for a marijuana trafficking conviction, the 24-year-old applied for a half-dozen jobs in Ohio. One of the prospects, a telemarketer, met Evans for two rounds of interviews before running a background check. Then, she says, the company called to say it wouldn’t hire her.

“It’s hard for a person who’s constantly being told no,” says Evans, who eventually found a job last September as a receptionist for a not-for-profit.

Her experience highlights the obstacles ex-offenders face in re-entering the workplace. The population of former inmates has swelled, in part because U.S. incarceration rates more than tripled from the mid-1980s to 2010. About 1 in 35 adults was imprisoned at the state, federal, or local level or was on probation or parole in 2012, according to the Bureau of Justice Statistics.

With the number of U.S. job seekers outnumbering openings almost 3 to 1, it’s easy for employers to pass over sullied resumes. But state and local lawmakers, and several major retailers are supporting efforts to increase the hiring of ex-offenders and to ensure that employers don’t discriminate on the basis of criminal records.

One barrier that’s drawn attention and criticism is the box on job applications asking prospective employees if they’ve ever been arrested or charged with a crime. The “current-day scarlet letter,” as Jersey City Mayor Steven Fulop recently described it, has led to a “ban the box” movement. Five states outlawed the question last year, bringing the total to 10. Another 56 local governments have similar prohibitions in place, according to data from the National Employment Law Project, an advocacy group in New York.

Indianapolis lawmakers also are considering a "ban the box" proposal. The City-Council's Public Safety and Criminal Justice Committee passed the measure  8-0 on Feb. 5. It still must be approved by the full council and the mayor to become law.

Some companies have already begun removing questions about criminal history from their job applications, to avoid immediately disqualifying job candidates who have criminal records. Target will ask the question later in the interview process and will run background checks after it makes a conditional job offer.

Wal-Mart Stores has a similar policy. “The removal does not eliminate the background check or drug test, but it offers those who’ve been previously incarcerated a chance to get their foot in the door,” said spokeswoman Tara Raddohl.

Federal labor laws do not explicitly prohibit companies from discriminating against ex-offenders. “There is not one specific statute [an employer] can go to,’’ said  Indianapolis labor lawyer Mark Waterfill.

Most of the rules spelling out what an employer can and can’t do come from the U.S. Equal Employment Opportunity Commission, which is stepping up scrutiny of employer hiring practices. Corporate policies that immediately screen former criminals can disadvantage minorities and violate the 1964 Civil Rights Act, the agency says. In April 2012 it issued a “guidance”—a set of rules for companies to follow in evaluating job applications of released prisoners.

The guidelines “create a burden on the employer to do a more individualized assessment” at the start of the hiring process,” said Andria Lure Ryan, a labor lawyer in Atlanta, and not simply weed out ex-offenders from the start.

The agency acknowledges there are valid reasons why some employers—a day care center, for instance—might not want to hire someone who has committed certain kinds of crimes. In such cases, the guidance says rejecting those applicants is OK. And there are federal regulations against hiring people convicted of violent crimes for jobs in airport security, among other fields.

The agency’s guidance isn’t the same as a federal law, but businesses have learned to take it seriously.

“When the EEOC makes a guideline like this, it often has the force of law,” Waterfill said.

Last June, the EEOC sued a BMW auto plant in South Carolina and Dollar General in Goodlettsville, Tenn., for alleged civil rights violations. The companies say they follow the law. Both cases are pending.

“It’s going to be an issue that employers need to wrap their heads around,” says Lester Rosen, founder of Employment Screening Resources, a background check company in Novato, Calif. “This whole process is picking up steam.”

Businesses are concerned that if they comply with the more restrictive rules, they risk exposing themselves to liability if they hire an ex-convict who then commits another crime.

“We’re caught in the middle,” says Richard Mellor, senior adviser for asset protection at the National Retail Federation.

“There really is a sense that we need to find ways for people to make a living,” says Elizabeth Torphy-Donzella, a labor and employment lawyer in Baltimore. At the same time, regulation “creates a risky environment for employers.”