Screening Applicants With Convictions
It’s best to know as much as possible about potential employees to avoid bad hiring decisions.

By Evelyn Maddox

Between July 2004 and July 2005, Missouri and Kansas released 24,614 offenders from correctional facilities. Nearly all of these offenders need to find jobs in Missouri or Kansas to stay out of jail. No doubt, a majority of them applied to small employers who tend to be more casual than large employers in screening applicants.

Many small employers do not use application forms, conduct sit-down interviews or do background checks. The result? An offender slips into a job, undetected, and the employer’s first knowledge of his or her criminal history is when a parole officer shows up on the worksite. Not all recent releases are on parole, however, so sometimes there’s no parole officer appearance, and the offender-employee’s record remains undetected for years. Installing a few simple screening procedures will help ensure that you learn the facts about an applicant’s criminal history before making an offer.

Standard Hiring Procedures
Following standardized procedures for evaluating all applicants is good business. Having all applicants complete an application form with a follow-up interview is the first step in safe hiring. Other important steps follow:

1.    Ask, “Have you ever been convicted of a felony?” on the application form and consult an attorney if there is any doubt about whether the question should be even more specific. Never proceed with an applicant who has not answered the conviction question with a “yes” or “no” and signed the application form.
2.    Ask for an explanation of the nature and severity of a crime for which there was a conviction, and do not proceed with further consideration unless satisfied that you know the facts. Verify the offender-applicant’s explanation with the parole officer and other responsible references.
3.    Probe for evidence of rehabilitation and confirm what the applicant says through contacts with references. Stabilized relationships and productive activities during incarceration and following release are good indicators of self-directed rehabilitation.
4.    Determine whether any state or federal laws expressly prohibit hiring people with a certain type of conviction for a certain type of job in your company.
5.    Use post-offer drug testing. Offenders and non-offenders who use drugs are naturally seeking employers who don’t do drug testing.
6.    Use an outside credit-reporting agency to search for criminal records of someone who acknowledges a conviction. Follow the procedures of the Fair Credit Reporting Act and consider selecting an agency that belongs to the National Association of Professional Background Screeners.

Always verify information that is relevant to the hiring decision, whether the applicant declares a conviction or not. Contact former employers to confirm dates of employment, job title and any other information the former employer is willing to give. Contact character references about periods when the applicant was not working. Construct a picture of the applicant’s whereabouts and activities for at least the last five years. If the offender was incarcerated in the most recent five years, account for the five years that preceded incarceration, as well as for his or her activities during incarceration.

Negligent Hiring Concerns
There are legitimate concerns about hiring persons with convictions. Discerning which applicant can and will do the job is tough enough. Adding responsibility for keeping out those who are likely to hurt another employee, customer or member of the public, or, who might steal property, creates a burden on the employer. That burden is legally known as the “negligent hiring principle.”

Simply stated, if an employer knew or should have known of an employee’s propensities to commit a crime, and the employee commits a new crime (in a situation connected with the job), a victim can allege employer liability for negligent hiring. Although there is no universal legal interpretation of negligent hiring liability, generally, an employer who makes a good faith effort to perform due diligence in screening applicants is more likely to prevail against a negligent hiring claim.

Evaluating the Offender-Applicant
Knowing the facts of the conviction is just the first step in evaluating whether the offender-applicant is a safe hire. Criminal records report legalese, not the details of the crime or the context in which it occurred. The next step, following confirmation of a conviction, involves evaluating four essential elements and requires additional investigation. Determine:

1.    The nature and severity of the crime
2.    How long ago the crime occurred
3.    The relevance of the crime to the job applied for
4.    Evidence of the person’s rehabilitation

If the offender is on parole, the best source of information about the nature and severity of the crime is the parole officer. Generally, an offender will authorize a prospective employer to contact the parole officer, and the parole officer usually will be forthright in discussing the offender’s history.

If the offender-applicant is not on parole, then individuals who have known the offender continuously since before the conviction, throughout incarceration and following release are the best source of information about the offender. Provided they are responsible citizens, themselves, they can provide some verification of the offender’s history and rehabilitation activities.

Offender-Applicant Rights
Respecting an offender-applicant’s rights to equal employment opportunity is an important component of evaluating applicants with convictions. Although not specifically protected because they are offenders, they are protected on the same basis as other applicants under Title VII of the Civil Rights Act of 1964, which includes: gender, age, race, religion, disability, etc.

Offenders who are recovering addicts also are likely to be protected under the Americans with Disabilities Act.

Employers who must comply with equal employment opportunity regulations on a federal level or state level simply need to apply the same non-discriminatory principles to offender-applicants.

With any applicant, employers should know as much about the potential employee as possible. Hiring mistakes are easier to avoid than correct.

Evelyn Maddox is president of Employment Services Inc., which specializes in helping growing businesses form HR policies and practices. She can be reached at (816) 421-5166 or .