As one of the co-chairs for the Employment Issues Task Force of the Maryland Chamber of Commerce, I see the employment legislation that is proposed during each Maryland General Assembly session. Some of it makes sense (although, frankly, not often), and some of it makes me scream (literally – just ask my partners). For the past couple of years, an issue that has come up and received serious consideration from our legislators is shielding – and this is one that falls into the latter category for me.
Shielding is part of the movement to enable those with criminal histories to move back into the workplace. One aspect of this movement, which is a hot topic right now at the state and local level, is ban-the-box laws. Those laws prevent an employer from asking about an applicant’s criminal history on an employment application (i.e. by checking the “box” indicating a criminal record) and through part or all of the hiring process. The most restrictive “ban-the-box” laws only permit an employer to review the criminal record of an applicant after making a conditional offer of employment, while less strict laws may permit it after or during the interview. But at least the employer can see the criminal record at some point.
This is in contrast to shielding laws, which protect certain (usually misdemeanor) convictions from being disclosed to an employer – ever. Unfortunately, the crimes being shielded are often the very types of crimes that may be directly relevant to an employer’s decision to hire or promote an individual. The fact that they are misdemeanors, and not felonies, doesn’t make them any less relevant or concerning to employers – they are still a violation of the law for which the individual has been convicted.
Shielding legislation typically includes crimes of conduct, like disorderly conduct and disturbing the peace, as well as destruction of property, which could suggest a propensity to violence. Given all of the instances of workplace violence that saturate the media, I think most employers would agree that this is important information to know about an applicant. This type of legislation often also includes crimes of honesty, like theft. Again, wouldn’t this be of importance in hiring an employee that, for example, has access to corporate accounts or handles customer transactions? Driving offenses – certainly those are important if an employer is hiring for a position with driving responsibilities. And shouldn’t an employer who has instituted a drug-free workplace know if the applicant has drug offenses on his or her record? These are all crimes that would have been shielded under the shielding law that was proposed in last year’s Maryland General Assembly session, and generally what we expect to see in this year’s legislation (which has not yet been released).
I understand and fully support the effort to give those with criminal records a chance for employment. But not by pretending that those records don’t exist. That is not fair to employers, who should be allowed to make the decision about who they want to hire based on full and complete information. In addition, those employers could be held liable to others for misconduct by their employee, which is particularly concerning if the conduct is related to the type of crime for which the employee had been convicted – crimes about which the employer was not permitted to know.
The EEOC has already issued guidance on how criminal convictions should be used in employment decisions – and it is an individualized, case-by-case assessment that takes into account the following factors:
1. The nature and gravity of the offense or offenses;
2. The time that has passed since the conviction and/or completion of the sentence; and
3. The nature of the job held or sought
(We discussed the EEOC’s guidance more fully in a prior posting, “EEOC’s Updated Guidance on Arrests and Convictions.”) Applying these factors is logical and reasonable, and most importantly, fair to both individuals and employers.