65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment

Introduction

In recent years, the criminal background check industry has grown exponentially. Particularly in the wake of 9/11, the ready availability of inexpensive commercial background checks has made them a popular employee screening tool. In one survey, more than 90 percent of companies reported using criminal background checks for their hiring decisions. At the same time that the background check industry has expanded, the share of the U.S. population with criminal records has soared to over one in four adults.

In the right situations, criminal background checks promote safety and security at the workplace. However, imposing a background check that denies any type of employment for people with criminal records is not only unreasonable, but it can also be illegal under civil rights laws. Employers that adopt these and other blanket exclusions fail to take into account critical information, including the nature of an offense, the age of the offense, or even its relationship to the job.

Yet, as this report documents, based on a survey of online job ads posted on Craigslist, major companies as well as smaller employers routinely deny people with criminal records any opportunity to establish their job qualifications. For any number of entry-level jobs, ranging from warehouse workers to delivery drivers to sales clerks, employers and staffing agencies post these and other job ads that unambiguously close the doors on applicants with criminal records:

“No Exceptions! . . . No Misdemeanors and/or Felonies of any type ever in background,”

“DO NOT APPLY WITH ANY MISDEMEANORS / FELONIES”

“You must not have any felony or misdemeanor convictions on your record. Period.”

Even some of the nation’s largest companies have imposed overbroad background check requirements, including Bank of America (283,000 employees worldwide), Aramark (250,000 employees worldwide), Lowe’s (approximately 238,000 employees), Accenture (180,000 employees), Domino’s Pizza (170,000 employees worldwide), Adecco USA (70,000 staff on assignment), Burlington Northern Santa Fe Railroad Co. (BNSF) (38,000 employees, not including contractors working on its railroad facilities), RadioShack (35,000 employees), and Omni Hotel (11,000 employees in North America).

Across the nation there is a consistent theme: people with criminal records “need not apply” for available jobs. Combine today’s tight job market, the upsurge in background checks, and the growing number of people with criminal records, and the results are untenable. In the end, workers are not the only ones who suffer. Employers are also disadvantaged as blanket hiring restrictions undermine the integrity of criminal background checks and artificially limit the employers’ pool of qualified candidates.

While this report explores the exclusion of people with criminal records from work, which severely impacts communities of color, it also reveals a promising shift in policy and practice. Indeed, this is an opportune moment to capitalize on a recent wave of impact litigation and model state and local reforms to develop fairer and more accurate criminal background checks for employment. If adopted, the following reforms featured in this report would significantly advance the employment rights of people with criminal records and promote safety and security at the workplace:

• The federal government should aggressively enforce civil rights and consumer protections that apply to criminal background checks for employment in the public and private sectors.
• The federal government should adopt fair hiring policies regulating federal employment and contracting that serve as a model for all employers.
• State and local governments should certify that their hiring policies fully comply with federal civil rights standards and launch employer outreach and education campaigns.
• The employer community, together with Craigslist, should play a leadership role in raising the profile of this critical issue and promoting best practices that properly balance the mutual interest of workers and employers in fairer and more accurate criminal background checks for employment.