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Redemption & Certificates of Rehabilitation - 4. Criminal History Records & Employment

Minor, Dylan, Nicola Persico and Deborah M. Weiss. 

This paper examines firm-level hiring practices and worker-level performance outcomes. Our data indicate that the typical employee with a criminal record has a psychological profile different from other employees, with fewer characteristics that are associated with good job performance outcomes.

This report catalogues and analyzes the various provisions for relief from the collateral consequences of a criminal conviction that are now operating in each of the 50 states. Its goal is to facilitate a national conversation about how people who have been convicted of a crime may best regain their legal rights and social status

The exclusion of individuals with criminal records from employment is examined. People working with soon to be released prisoners or ex-offenders should be aware of this issue. The ability to find gainful employment, one of the critical needs for successful reentry, will be critically impacted by the sometimes unnecessary checking of criminal histories. Six sections are contained in this report: introduction; shutting workers with criminal records out of the job market compromises the economy and public safety; over broad hiring restrictions run afoul of federal laws regulating criminal background checks for employment; wave of lawsuits documents routine civil rights and consumer protection violations; Craigslist survey reveals flagrant abuses by the nation’s largest companies; and recommendations.

65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment Cover

U.S. Department of Education.

This webpage links to the Beyond the Box Resource Guide and fact sheet. The Guide provides information for colleges and universities to help remove barriers that can prevent the estimated 70 million citizens with criminal records from pursuing higher education, including considering the chilling effect of inquiring early in the application process whether prospective students have ever been arrested. The guide also encourages alternatives to inquiring about criminal histories during college admissions and provides recommendations to support a holistic review of applicants.

Aamodt, Michael G. Ph. D. Society for Human Resource Management and Society for Industrial and Organizational Psychology.

Background investigations are used by 86% of organizations in the U.S. to determine if applicants have previously engaged in behaviors that suggest they might engage in future counterproductive behaviors on the job or be a threat to the safety of others. A background investigation might consider some or all of the following: reference checks, credit history, criminal record, driving record, work history, military service, education and personal references. This paper will discuss legal considerations in using two of the most controversial components of the background check: criminal history and credit history.

Pinard, Michael. Legislation and Public Policy, 16: 963-997.

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, state and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

The HireRight 2016 Annual Employment Screening Benchmark Survey was performed in October and November 2015. The responses came from several thousand human resources professionals, including HireRight customers, who indicated they were knowledgeable about employment screening and recruiting. The report explores key issues, trends, and underlying business drivers affecting screening programs in U.S. organizations. It also covers policy and practices. The survey notes that "criminal, identity, employment and education verifications remain, by far, the most popular types of background checks."

"In many states and cities, both public and private employers can include a question on application materials requiring applicants to disclose whether or not they have a conviction record. While there is growing momentum to “Ban the Box,” in most cases these efforts only ban the box for public employment … On average, states have 123 mandatory bans and restrictions for would-be workers with felony convictions per state from employment in occupations or industries, from obtaining certain types of occupational licenses, and/or from obtaining certain types of business or property licenses. 10 states have more than 160 of these regulations, including 248 in Texas, 258 in Illinois, and 389 in Louisiana. Only nine states have fewer than 75 regulations" (p. 5). This report describes the barriers that individuals with criminal records face when they look for high-paying jobs ensuring a degree of economic stability. Sections following an executive report include: introduction; background; national findings; profiles for 16 states and Washington, DC regarding their restrictions for individuals with felonies and controlled substance convictions; recommendations; and conclusion.

Jobs after Jail Cover

Garretson, Heather J. Public Interest Law Journal, 25:1-41.

"This paper contains the first comprehensive research on New York’s certificates. The research asks whether New York’s certificates are accessible and relevant to employment. It combines statutory analysis with qualitative research. It is a study of how certificate legislation is supposed to work – and how it actually does. It examines a statutory scheme that is recently replicated but empirically empty. Through interviews with judges, people with certificates or those eligible but without one, attorneys, current and former probation officials, service providers, and advocates, this paper provides insights into the use of certificates, their challenges, and examines how legislating more of the same can effectively address the employment paradox."

Federal Register. 

The U.S. Office of Personnel Management (OPM) is proposing to revise its regulations pertaining to when, during the hiring process (unless an exception is granted), a hiring agency can request information typically collected during a background investigation from an applicant for Federal employment. OPM is proposing this change to promote compliance with Merit System Principles as well as the goal of the Federal Interagency Reentry Council and the President's Memorandum of January 31, 2014, “Enhancing Safeguards to Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own.” The intended effect of this proposal is to better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment.


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