Criminal background as a barrier to employment

[mike]

I think that criminal background is one of the greatest barriers to employment these days. When posting jobs to Indeed, one of the questions asked is whether their system can invite people to apply who have a criminal background. There are massive amounts of job-seekers who have a background.

We have hired a couple of them. One worked out well and has been with my company for several years. The background was armed bank robbery. Another we just hired, and we shall see. The background included DUIs, theft, and most concerningly pulling a shotgun on someone. The occurrences were 6-10 years ago, incurred no jail time, and the person has since started a family and had no further offenses, apparently reforming herself to some extent.

A background can be overcome. It helps when the applicant is totally upfront with their record. But it is still a risk, and I think it is one of the biggest hurdles to employment these days.

[Josh]

San Francisco requires you not to “discriminate” based on prior criminal history (regardless of how heinous, murder, rape, robbery, fraud, stealing from employers, whatever).

Overall, I feel like there are some people I’d like to avoid in my organisation - particularly unrepentant drug users and dealers.

[mike]

San Francisco requires you not to “discriminate” based on prior criminal history (regardless of how heinous, murder, rape, robbery, fraud, stealing from employers, whatever).

Overall, I feel like there are some people I’d like to avoid in my organisation - particularly unrepentant drug users and dealers.

You just don't give a reason when declining to consider an applicant. Isn't that how you get around discrimination laws?

[Josh]

San Francisco requires you not to “discriminate” based on prior criminal history (regardless of how heinous, murder, rape, robbery, fraud, stealing from employers, whatever).

Overall, I feel like there are some people I’d like to avoid in my organisation - particularly unrepentant drug users and dealers.

You just don't give a reason when declining to consider an applicant. Isn't that how you get around discrimination laws?

These laws are actually enforced, so no. You have to keep records about a denial and be careful not to find out criminal background before a job offer is made. Once it is made, a criminal background can’t result in rescinding a job offer.

People who are discriminated against can sue for back pay and have the assistance of the government helping them sue for that.

[mike]

San Francisco requires you not to “discriminate” based on prior criminal history (regardless of how heinous, murder, rape, robbery, fraud, stealing from employers, whatever).

Overall, I feel like there are some people I’d like to avoid in my organisation - particularly unrepentant drug users and dealers.

You just don't give a reason when declining to consider an applicant. Isn't that how you get around discrimination laws?

These laws are actually enforced, so no. You have to keep records about a denial and be careful not to find out criminal background before a job offer is made. Once it is made, a criminal background can’t result in rescinding a job offer.

People who are discriminated against can sue for back pay and have the assistance of the government helping them sue for that.

I see. How would they know if you performed a background check or googled the person?

[Josh]

You just don't give a reason when declining to consider an applicant. Isn't that how you get around discrimination laws?

These laws are actually enforced, so no. You have to keep records about a denial and be careful not to find out criminal background before a job offer is made. Once it is made, a criminal background can’t result in rescinding a job offer.

People who are discriminated against can sue for back pay and have the assistance of the government helping them sue for that.

I see. How would they know if you performed a background check or googled the person?

You’re legally required to keep records and if you’re sued, those records can be subpoenaed. If you were trying to lie and say you didn’t Google the person, you’ll be stuck with a burden of proof to prove you didn’t and the other person has the right to subpoena your computer to check your search history.

Businesses in SF typically use an Applicant Tracking System that confines all interaction with applicants through a specific computer system so they can have these records in one place and ready to turn over in the event of a lawsuit - and also prove they didn’t do things like an illegal background check.

It is true it may be possible to break the law here and get away with it. I would not personally try it.

[cooper]

The successful business owners of the future will need to have good HR skills or the ability of speak Spanish.

[Ken]

Once again, Josh gets something completely wrong.

The way that the law actually works in San Francisco is that you forbidden to use background checks as an initial screening tool during the preliminary process of hiring. But once you have given someone a CONDITIONAL offer of employment you are free to do background checks on that individual and rescind your CONDITIONAL offer of employment based on the results of the background check. At that point you simply send the applicant a letter explaining that you are revoking the offer of employment based on the background check for the following reasons. And then they would have a chance to respond if the background check was inaccurate or something.

The law also doesn't apply at all to jobs that involve minors or elderly such as teachers, daycare workers, nursing home workers, etc. They can do background checks all the want at the start of the process.

So no, you don't actually have to hire anyone with a criminal record. But you have to give them a chance through the interview process first before you rescind the offer based on a criminal background check and you have to let the person know why you are doing it.

That is why it is called the "Fair Chance" law.

[Josh]

But once you have given someone a CONDITIONAL offer of employment you are free to do background checks on that individual and rescind your CONDITIONAL offer of employment based on the results of the background check.

Once again, Ken, you get this wrong.

The FCO also prohibits covered employers from ever considering the following:

An arrest not leading to a conviction, except for unresolved arrests.

Participation in a diversion or deferral of judgment program.

A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative.

A conviction in the juvenile justice system.

An offense other than a felony or misdemeanor, such as an infraction.

A conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults).

A conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis.

If hiring in SF you’d better be very careful not to violate the law above. Yes, there is a very narrow exception for daycares or nursing homes.

[Ken]

But once you have given someone a CONDITIONAL offer of employment you are free to do background checks on that individual and rescind your CONDITIONAL offer of employment based on the results of the background check.

Once again, Ken, you get this wrong.

The FCO also prohibits covered employers from ever considering the following:

An arrest not leading to a conviction, except for unresolved arrests.

Participation in a diversion or deferral of judgment program.

A conviction that has been dismissed, expunged, otherwise invalidated, or inoperative.

A conviction in the juvenile justice system.

An offense other than a felony or misdemeanor, such as an infraction.

A conviction that is more than 7 years old (unless the position being considered supervises minors or dependent adults).

A conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis.

If hiring in SF you’d better be very careful not to violate the law above. Yes, there is a very narrow exception for daycares or nursing homes.

Do you think someone should be permanently barred from employment simply because they were once arrested but not convicted? Say someone who was arrested during a peace protest or anti-abortion protest or selling raw milk without a license? But then the charges were dropped and nothing came of it?

Or because they stole a magazine from a convenience store when they were 12 and got arrested for it as a juvenile? Should that follow them the rest of their life?