Today, the EEOC will be holding a meeting on the use of criminal records for employment background screening. The issue is an important one, affecting millions of individuals every year. The United States Department of Justice estimates that more than 700,000 people are released from state and federal prisons every year. Another 9 million cycle through local jails, according to The Urban Institute. Federal and state agencies are funding re-entry efforts in communities all around the country. The Federal Reentry Council is coordinating these efforts.
The economic and societal costs of failed re-entry are high. The Pew Center estimates the United States spends more than $68 billion on federal, state and local corrections. Re-entry intersects with all aspects of life – health, education, family, faith, housing and employment. Finding employment is a critical part of re-entry.
There are three common myths about employment of individuals with criminal records. First, individuals with criminal records are automatically barred from employment. An arrest or conviction doesn’t automatically bar an individual from employment. Under Title VII of the Civil Rights Act, it is illegal to discriminate in employment based on race, color, national origin, religion or sex. Employers can require applicants to provide information about arrests, convictions or incarcerations under Title VII. But employers cannot treat people with the same criminal history differently because of their race or national origin. In most cases, employers can’t automatically bar anyone with an arrest or conviction record from employment. Blanket exclusions like this are likely to limit employment opportunities of applicants or workers because of their race or ethnicity.
Information about convictions or incarcerations should only bar someone from employment when the conviction is closely related to the job. Employers should consider the nature of the job, nature and seriousness of the offense, and length of time since the offense occurred. It’s also important to remember that an arrest alone does not necessarily mean that someone has committed a crime. Employers shouldn’t automatically assume that someone who was arrested but not convicted did in fact commit the offense. Instead, employers should allow the person to explain the circumstances of the arrest. If it appears the individual did engage in the alleged unlawful conduct, then employers should assess whether the conduct is related closely enough to the job to justify denial of employment.
Second, many people think that employers have no way of protecting themselves from property and monetary losses if an individual they hire turns out to be dishonest. The Federal Bonding Program offers fidelity insurance bonds to protect employers for losses resulting from theft, forgery, larceny, embezzlement and other dishonest acts by employees. The Federal Bonding Program, administered through the Department of Labor, is an employee incentive that guarantees the job honesty of at-risk job seekers, including ex-offenders. The Department of Labor provides state workforce agencies with a package of promotional bonds to encourage employers to take part in the program. States, localities and other re-entry service organization can purchase added bonds. The program has been highly successful. Only one percent of bonds issued resulted in claims.
Finally, many people incorrectly believe that the federal government’s hiring policies ban employment of people with criminal records. The federal government does not have a blanket exclusion of individuals with criminal records for all positions. Under the Merit System Principles, federal agencies must consider people with criminal records for vacancies if they are the best candidates and comply with requirements. Federal agencies consider the nature, seriousness and circumstances of the individual’s criminal activity and whether employment of the individual poses any risks to national security.
There are a few federal laws – such as those outlawing treason – that carry a lifetime ban on federal employment. Eligibility for security clearance may also be affected by previous criminal conduct. Overall, however, individuals with criminal records are eligible to work in the vast majority of federal jobs.