Is Hiring More Felons Good for Business?

Nick Fishman

Criminal Record Background Check

The hearing on the EEOC’s Guidance to Employers on Criminal Background Checks held by the U.S. Commission on Civil Rights continues to draw sharp responses by those opposed to the new rules.  Today, the Wall Street Journal published an Op-Ed written by author James Bovard in which he cynically wonders whether it should be a federal crime for businesses not to hire those with criminal records.   Bovard clearly embraces the concept that employment background checks are a vital screening tool that must be considered when determining qualified candidates and takes the EEOC to task for their past and current actions against employers.

  • In 1989, the agency [EEOC] sued Carolina Freight Carrier Corp. of Hollywood, Fla., for refusing to hire as a truck driver a Hispanic man who had multiple arrests and had served 18 months in prison for larceny. The EEOC argued that the only legitimate qualification for the job was the ability to operate a tractor trailer.
  • The agency is demanding that one of Mr. Livingston’s [Donald Livingston- former EEOC General Counsel] clients—the Freeman Companies, a convention and corporate events planner—pay compensation to rejected job applicants who lied about their criminal records.
  • The biggest bombshell in the new guidelines is that businesses complying with state or local laws that require employee background checks can still be targeted for EEOC lawsuits. This is a key issue in a case the EEOC commenced in 2010 against G4S Secure Solutions after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.

It remains to be seen what will happen in the latter two cases mentioned above, but the decisions made will have clear implications for employers one way or the other.  Stay tuned.

Perform Criminal Background Checks at Your Peril

A federal policy intended to help minorities is likely to have the opposite effect.

Should it be a federal crime for businesses to refuse to hire ex-convicts? Yes, according to the Equal Employment Opportunity Commission, which recently released 20,000 convoluted words of regulatory “guidance” to direct businesses to hire more felons and other ex-offenders.

In the late 1970s, the EEOC began stretching Title VII of the 1964 Civil Rights Act to sue businesses for practically any hiring practice that adversely affected minorities. In 1989, the agency sued Carolina Freight Carrier Corp. of Hollywood, Fla., for refusing to hire as a truck driver a Hispanic man who had multiple arrests and had served 18 months in prison for larceny. The EEOC argued that the only legitimate qualification for the job was the ability to operate a tractor trailer.

The EEOC ignored that judicial thrashing and pressed on. Last April, the agency unveiled its “Enforcement Guidance on the Consideration of arrest and Conviction Records in Employment Decisions,” declaring that “criminal record exclusions have a disparate impact based on race and national origin.”

Though blacks make up only 13% of the U.S. population, more blacks were arrested nationwide for robbery, murder and manslaughter in 2009 than whites, according to the FBI. The imprisonment rate for black men “was nearly 7 times higher than White men and almost 3 times higher than Hispanic men,” notes the EEOC. These statistical disparities inspired the EEOC to rewrite the corporate hiring handbook to level the playing field between “protected groups” and the rest of the workforce.

Most businesses perform criminal background checks on job applicants, but the EEOC guidance frowns on such checks and creates new legal tripwires that could spark federal lawsuits. One EEOC commissioner who opposed the new policy, Constance Barker, warned in April that “the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do.”

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Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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