Employer Guide for Hiring People with Criminal Records in New York State

Employer Guide for Hiring People with Criminal Records in New York State

Employers understand that increasing equity requires more than talk of inclusion, but concerted efforts to address the underlying structural sources of inequality. Expanding the applicant pool to include skilled individuals with criminal records is becoming increasingly attractive and necessary. Cornell ILR’s Criminal Justice and Employment Initiative (CJEI) prepared this guide to give employers best practices for hiring qualified justice-impacted people. Though its training seminars, workshops, and conferences, CJEI educates employers about successful approaches to hiring people with criminal records.

Employment Laws

Ban the Box/NYC Fair Chance Act:This law prohibits questions regarding a criminal history on job applications and during the initial interview. Ban the Box provides employers the opportunity to discuss applicant’s skills and qualifications before learning about their criminal history. Laws vary by locality.

Employers should take the following steps to ensure compliance with Ban the Box requirements:

• Do not include questions regarding criminal history on job applications or during the initial interview.
• Ensure language on employment advertisements does not exclude applicants with criminal records.
• Train recruitment and hiring managers about relevant NYS and local laws and when they may ask about an applicant’s criminal history.
• Check local law to determine the exact requirements in your area and the appropriate enforcement agency.

NYS Correction Law Article 23-A: The purpose of this law is to ensure employers conduct an individualized assessment of all qualified candidates, regardless of criminal history.

Employers must consider all the following factors when evaluating a job applicant with a criminal record:

• Job-specific duties and responsibilities for the position
  • Review the applicant’s job experience and skills and compare to the job requirements.
• Impact the criminal record has on the applicant’s ability to perform the duties or responsibilities of the job
  • Determine if there is a direct relationship between the previous criminal offense and the job (e.g., an applicant with a criminal conviction in animal abuse might not be a good candidate for job at animal shelter).
• Amount of time since the offense
  • Take into account how long it has been since the applicant's last contact with the criminal justice system.
• Age when the offense was committed
  • Consider how old the applicant was at the time of offense. Studies show people are less likely to commit a crime as they mature physically, mentally, and emotionally throughout their lives.
• Seriousness of offenses
  • Consider the number of convictions and circumstances surrounding them.
• Candidate’s ability to provide someone willing to speak on their behalf about positive change
  • Evaluate proof of positive change, which may include certificates and letters from the community.
    Certificates are documents issued by a government entity as evidence of rehabilitation. The justice-impacted individual goes through an intensive screening process to obtain a certificate.
• Impact that the candidate’s employment may have on the safety and general welfare of others
  • Consider whether or not the conviction is related to the job requirements.

Title VII: The Civil Rights Act of 1964, a federal law enforced by the Equal Employment Opportunity Commission, protects all job applicants and employees from discrimination on the basis of their race, color, religion, sex, gender, or national origin.

Employers’ fair screening policy should consider:

• Individualized assessment
• Equal treatment of criminal history information for all applicants
• Nature of the crime
• Time elapsed
• Duties of the job

Fair Credit Reporting Act (FCRA): This federal law – enforced by the Federal Trade Commission – requires employers to provide an applicant the opportunity to review and challenge the results of the background check before denying their application.

Employers should take the following steps to comply with FCRA:

• Request the applicant’s written permission to conduct the background check.
• Notify the applicant in writing that the information obtained from a background report may be used for employment decisions.
• Provide applicants an opportunity to challenge the information in the background report and offer proof of positive change, before taking an adverse action.

Risk Reduction

Insurance protection: Insurers who write commercial crime insurance policies must provide coverage to an employer who has weighed the factors set out in NYS Correction Law Article 23-A and made a determination to hire the justice-impacted applicant (NYS Insurance Regulation 209 of 2017).

Federal bonding program: Protects employers who hire people with criminal records and insures them against certain crimes committed on the job. For more information see: http://bonds4jobs.com

Employer Benefits

Reduced turnover: Employees with criminal records tend to stay on the job and remain loyal to employers who hire them.

Increased engagement: Many employees with criminal records want to succeed, determined not to return to prison or their previous lifestyle.

Recently acquired skills: Some prisons, reentry services, and diversion programs offer job training to increase employment opportunities for individuals with criminal records.

Tax credits: Employers can receive up to $9,600 for each individual with a criminal record they hire. For more information on an application and eligibility, see: https://www.doleta.gov/business/incentives/oppta

Myths and Facts

Myth: People involved in the criminal-justice system are unreliable.
Fact: Most justice-involved individuals are productive employees who are eager to demonstrate their skills in the workplace.

Myth: People re-entering society after prison are more likely to commit crimes again.
Fact: Research has shown people with criminal records who are employed are significantly less likely to commit a crime again.

Myth: People with criminal records have a poor work ethic.
Fact: Most receive job assignments in prison and participate in work release programs, which requires meeting performance goals.

Myth: Justice-impacted people lack in education.
Fact: Some prisons and nonprofits offer a variety of courses and apprenticeship programs through partnerships with local colleges and/or vocational schools. For example, Cornell’s Prison Education Program provides college-level courses at the Auburn Correctional Facility and Cayuga Correctional Facility. For more information, see: cpep.cornell.edu.

Myth: They might attract negative co-worker perceptions.
Fact: Aside from line managers, there is no need for co-workers to know an employee’s past.

Myth: Employers will be subject to more negligent hiring lawsuits
Fact: Applying the Article 23-A individual assessment creates a presumption of due diligence, a defense in these lawsuits.

Employer Best Practices

Accurate background checks: Denying a job to a qualified applicant due to inaccuracies in a criminal background check negatively impacts the applicant and the employer.

Employers should work with Credit Reporting Agencies (CRA) that follow these best practices:

• They’re certified by the National Association of Professional Background Screeners. For more information see: https://www.napbs.com/.
• They confirm all information with original criminal justice source.
• They use full name and at least one other personal identifier before reporting a criminal record.
• They reports all charges from a single incident as a single entry.
• They remove dismissed, or sealed dispositions.
• They regularly notify employers with updated information on the disposition of relevant cases.

Fair interview process: Employers and recruitment professionals can review and plan their interview process to make sure all applicants have an equal opportunity to demonstrate they are the best candidates for the positions.

Employers should implement a fair interview process by following these practices:

• Eliminate policies and practices that automatically disqualify applicants based on criminal records.
• Ask only job-related questions during the job interview.
• Obtain applicants’ permission before requesting a background check.
• Keep information about criminal records confidential.
• Provide applicants the opportunity to explain mitigating circumstances related to the offense or conduct.
• Consider only job-related convictions in the hiring process.
• Provide the applicant with an opportunity to review and challenge the CRA report.
• Consider applicants’ efforts at rehabilitation and positive change.

Non-discriminatory hiring process: Comprehensive training for HR staff and a transparent process can help an employer objectively assess qualifications of justice-impacted individuals.

Employers can improve the hiring process by:

• Providing anti-discrimination and implicit bias training to HR staff to ensure fair screening
• Setting clear objectives for recruitment efforts
• Conducting regular audits to determine whether criminal record screening policies are having an adverse impact on Black and Latino job applicants
• Implementing standardized selection procedures for use by HR staff
• Instructing HR staff to consider Certificates of Relief from Disabilities (CRD) and Certificates of Good Conduct as proof of rehabilitation

Coordinate with Workforce Development programs: These programs provide support to employers and justice-impacted employees to promote on the job success.

Workforce Development programs help businesses ensure that workers get the assistance they need such as:

• Transportation to work at no cost to the employer
• Interpersonal communication, organizational skills, and leadership training
• High school equivalency courses
• Case management for employees with criminal histories
• Advice for employers on how to apply for tax credits and subsidies