Decadeslong Arrest Wave Vexes Employers

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Three decades of tougher laws and policing have left nearly one in three adult Americans with a criminal record, according to data kept by the Federal Bureau of Investigation. That arrest wave is washing up on the desks of America’s employers.

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.

Employers are in this position because there are nearly 80 million Americans with criminal records, including arrests that didn’t lead to a conviction, at a time when the Internet and computerized databases make such information easier than ever to obtain. Ignoring the records can leave a company vulnerable to making bad hiring decisions and to lawsuits. But using them can raise the ire of government officials and lead to charges of discrimination.

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Much of the nervousness traces to a 2012 document from the U.S. Equal Employment Opportunity Commission. It recommended that employers not ask about criminal records on initial application forms. Before rejecting someone because of a criminal record, it said, the employer should examine such things as when a conviction occurred, whether the crime was related to the job in question and what rehabilitation efforts the individual had made. Though not a law, the document, called an enforcement guidance, has teeth. It is the EEOC’s position on what the 1964 Civil Rights Act’s employment-discrimination section, Title VII, requires of employers.

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In addition, 13 states and nearly 70 local jurisdictions have passed laws restricting employer requests for criminal records early in the hiring process, according to the National Employment Law Project, a nonprofit research and advocacy group. Some of these “ban-the-box” laws—referring to a check-off box on forms—don’t allow asking until a conditional job offer has been made. The restrictions help those with rap sheets at least get a foot in the door. Yet companies remain within their rights to check criminal records at some point.

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