“Decades-long Arrest Wave Vexes Employers”

December 17, 2014 CCRC Staff

The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.

Companies seeking new employees are forced to navigate a patchwork of state and federal laws that either encourage or deter hiring people with criminal pasts and doing the checks that reveal them. Employers are having to make judgments about who is rehabilitated and who isn’t. And whichever decision they make, they face increasing possibilities for ending up in court.

Last August these two veteran reporters wrote about the increasing number of Americans burdened with status-based restrictions (“America Busted: As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime”), and two weeks ago they wrote about the assembly line justice in misdemeanor courts that makes it easy to pick up a criminal record (“Justice is Swift as Petty Crimes Clog Courts”). The current installment shows how employers struggle to reconcile their conflicting obligations to protect their workplace and comply with state laws that may send conflicting signals (don’t ask, but do restrict). A final installment will deal with the difficulty for individuals with a record to restore their legal rights and social status.

The article describes the conflicting signals sent by laws that encourage or require more stringent background checks, laws that direct employers not to ask about criminal record until an offer is made (“If it is a disqualifying offense, you’ve just wasted both the candidate’s and the employer’s time”), and the threat of EEOC enforcement action or negligent hiring suits. Courts have backed employers in their use of background checks:

A judge last year dismissed an EEOC suit accusing a Dallas events-marketing firm, Freeman Co., of a pattern of discrimination based partly on its use of criminal-background information. Judge Roger W. Titus, in dismissing the suit in federal court in Greenbelt, Md., said the agency was asking companies to ignore “criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC.”

At the same time, laws that require employers to fire qualified workers seem ripe for challenge:

Ohio in 2007 passed a law barring people convicted of certain crimes from working in public schools. The Cincinnati system discharged 10 employees, nine of them black. Two of the nine filed a suit in Cincinnati federal court, which is still pending, alleging racial discrimination.

One plaintiff, Eartha Britton, 60 years old, was an instructional assistant and 18-year veteran. Her crime: a 1983 conviction for being a go-between in the sale of $5 worth of marijuana, a conviction that was later expunged, the suit said. Through her attorney, she declined to be interviewed.

In situations where the law does not require rejection, employers must do their best to reconcile the “varying impulses—to give job seekers a fair shot, to keep workplaces safe and to keep companies out of legal jeopardy.” Some states have developed standards to assist employers in charting this course, and others invite reliance on restoration mechanisms such as pardon or expungement (to be discussed in the next WSJ article). It seems that employers who are trying to do the right thing would welcome some more coordinated national effort to address the issues raised by mass conviction.