There are often no legal prohibitions against hiring candidates with criminal records for many jobs, but often employers are reluctant to do so.
New York CNN —
Even before a jury found Donald Trump guilty on 34 felony counts of falsifying business records in the so-called “hush money” trial in New York, many Americans were surprised to learn that having a criminal conviction would not automatically disqualify someone from serving as president of the United States, should they be elected.
But the US Constitution doesn’t disallow it.
In fact, for many if not most jobs, there are no legal prohibitions on hiring those with criminal records. Nevertheless, many employers are reluctant to do so.
So if Trump waslooking for the types of jobs thattens of millions of other Americans with criminal recordsapply for, he’d likely find the same roadblocks they face during their job search.
Criminal records can include anything from serious crimes, like a murder conviction, to something far more minor— such as an arrest in a case where the charges were dropped or the person was acquitted.
Whatever the situation, “People simply don’t seem to want to deal with a criminal record of any kind, even if the charges were dropped,” said Margaret Love, executive director of the Collateral Consequences Resource Center, which keeps track of federal and state laws that address the restoration of rights for those who have been arrested or convicted of crimes.
Background checks can kill job prospects
With the exception of certain industries, such as banking or health care, or certain types of public sector jobs, employers aren’t legally required to run background checks on job candidates.
Yet most do anyway. And when a criminal record of any kind turns up, that can kill a person’s chances, regardless of how well-qualified they may be for a position, either because an employer has a high aversion to risk or a bias against those with a record, Love said. “There is a patchwork of formal laws or rules that may bar people from some kinds of employment. But mostly the problem has become a less formal one and manifests through widespread background checking.”
This, despite a labyrinth of laws and regulatory guidance at the federal, state and local levels aiming to give those with criminal records a fairer shake as job candidates.
The US Equal Employment Opportunity Commission, for instance, requires employers that consider criminal records in their hiring decisions to “assess whether the record is relevant to the job” by looking at the type and seriousness of the offense or crime; how long ago it was committed or when the sentence was completed.
There are also at least 37 states and over 150 cities and counties that “have taken steps to remove barriers to employment for qualified workers with records. Of those jurisdictions, 15 states, the District of Columbia, and 21 cities and counties extend their fair chance hiring policies to private employment,” according to the National Employment Law Project.
But there are no blanket provisions or prohibitions across the board. “Laws vary in what they require of employers. … And a lot of places don’t require anything at all,” said Beth Avery, a senior staff attorney at NELP. “Even the strongest of laws is aimed at getting someone’s foot in the door – and that’s not enough.”
For instance, Avery said, states with the strongest laws prohibit employers from doing a background check until after they make a job offer to a candidate. And even then, employers may still rescind the job offer.
That’s what happened to a client of Sabina Crocette, a senior staff attorney in the Racial Economic Justice Program at the group Legal Aid at Work in San Francisco. Her client had convictions from 2007 when he was young, but nothing since. His convictions were dismissed in 2017 after he’d gotten a business education at a community college and engaged in other rehabilitative activities, Crocette said. He applied for a bank job in the past two years, after getting licensed to be a mortgage loan broker and having worked for a year in financial services. The bank gave him a job offer, pending a background check.
“When it came back showing dismissed convictions, he was denied the job,” Crocette said. “The employer cited his conviction history. When he appealed the employer’s decision and provided them with evidence of record clearing, the employer still denied employment.”
In explaining its rejection, the bank cited a Federal Deposit Insurance Corporation regulation known as Section 19, which Crocette said the firm misinterpreted. After being rejected twice, the client persisted. “With the help of California’s Fair Chance Act, as well as the actual language and guidance within Section 19, the client was able to be hired and continues to work successfully for that employer,” she said.
While the end result was a good one for the client, it’s not typical and the whole experience took roughly eight months to resolve. “It was a lot,” Crocette noted.
Even with relatively strong laws, ‘massive’ problems persist
In addition to California, New York is one of the states that has some of the strongest laws geared toward helping people with criminal records get a job. But even so, “there are still massive, massive problems,” said Jason Hoge, supervising attorney for the Legal Assistance of Western NY (LawNY) Reentry Project.
Employers — especially smaller ones — may wrongly assume they can’t hire one of his clients because of a past conviction, Hoge said. Or the paperwork and time required to get approval for someone with a criminal record may be such that an employer simply decides to look at candidates without a record.
“Sometimes people believe they are required to turn my clients down because of a criminal conviction. Sometimes you have straight-up discrimination [as in] ‘I’m never going to hire someone with a criminal record.’ [Or sometimes] they use criminal records as cover for race discrimination,” Hoge said, alluding to the disparities in US society that result in Blacks being more likely to be arrested and jailed than Whites with similar charges and criminal histories.
Hoge recommends that anyone who has ever had even a minor run in with the law get their own copy of their criminal record and take steps to correct any mistakes before an employer pulls it. Every state will have a recordkeeper similar to New York’s Division of Criminal Justice Services.
Check to see what laws and regulations your state or city has on the books that can offer you protections during the job search process. For example, in November, New York’s Clean Slate Act will go into effect. That law provides for eligible conviction records to be automatically “sealed,” meaning they should no longer show up on employer background checks. And just this month, Maryland Gov. Wes Moore issued a pardon for 175,000 misdemeanor convictions related to cannabis possession.
