Why Context Matters: Hiring Applicants With a History of Misdemeanors and Criminal Records

A background check that doesn’t come back “clean” can be an immediate concern for many employers. Often, the presence of misdemeanors and other criminal records immediately recolors what a recruiter or hiring manager thinks of a candidate. The problem is so serious that even the Equal Employment Opportunity Commission has had to publish guidelines specifying that blanket bans on applicants with records aren’t legal. Even so, many barriers remain, hence the growth of “ban the box” laws and other efforts to restore fairness.

It may be necessary for employers to rethink how they react to misdemeanors, and background checks could create valuable opportunities for employing individuals you might otherwise miss. Consider this scenario: you’ve interviewed an individual and reviewed their qualifications. They seem perfectly suited to the job. However, their background report reveals a history of minor misdemeanors or perhaps a single more serious (but non-violent) charge or conviction. What now?

“Remember the human” is a good guideline here. The applicant in question is an individual with a complex history. Making a decision solely on the criminal record, except when required by law, might not be the right decision. Adopting a more empathetic approach to the criminal background check for employment can make a difference.

A quick case study: what happened with AirBnB?

As a service providing short and medium-term rentals between private property owners and app users, AirBnB has faced criticism in the past for not doing enough to enforce safety on its platform. Today, the company uses background checks on guests as one of its protective measures—but this effort has led to some high-profile incidents of negative PR. These include:

• A Pittsburgh councilwoman’s account was banned for an old drug conviction despite her present position in the government and significant work toward rehabilitation.
• A man who lost his account before he ever completed a single stay because of 7-year-old misdemeanor convictions, with no criminal history before or since.
• A University of Buffalo professor denied access to the platform because of 20-year-old drug convictions.

In each case, those affected pointed to the highly automated and restrictive criminal background checks that AirBnB uses. Even after reviews, many users found it impossible to regain their accounts. Though some have had their access restored, each case reveals an unfair decision that continues to penalize those with records long after they’ve paid their debt to society.

Attention to detail—and context—makes a difference

AirBnB has attracted considerable negative press because of the lack of nuance and humanity in its background check process. Organizations that don’t apply context to their processes could act in an overly harsh or even discriminatory manner. Looking for traffic tickets and background checks that report them, for example, won’t provide much useful information to a company where workers don’t operate vehicles. DUIs and background checks are another story—but even then, context matters.

Let’s revisit the example from earlier–the job applicant with a history of minor misdemeanors. Instead of denying that individual immediately, consider the context. The EEOC “Green factors” are a useful tool here. Ask yourself questions such as:

• How long ago did the convictions or charges occur? 
• How severe were the indictments in reality? Research the charges in your state statutes.
• What efforts have the individuals made to rehabilitate themselves?
• Is the person in a much different life stage? Have they made real progress?

Interviews with applicants can make a difference, too. Asking candidates (at the appropriate time) about their records allows them to explain. What you choose to believe is up to you—but in combination with other answers, you might learn that your candidate’s past doesn’t define them. That could open the door to a productive future as a member of your team.

Misdemeanors and criminal records can cause instant concern during the hiring process, but beware of seeing them as a permanent black mark against a candidate. Instead, dig into the details. Develop the context and learn to understand what a candidate’s record really says about them. In doing so, you can more capably identify the individuals best suited to your business—and you could provide a valuable second chance to someone, too.