Candidates & Criminal Records: A Case-by-Case Basis Per Country
A criminal record can be detrimental within the hiring process. The implication of the offense varies by each country and based on each offense.
Based on federal employment discrimination laws enforced by the Equal Employment Opportunity Center (EEOC), this is how criminal records should be handled for job applications within the U.S:
- Consistency: A company should treat applicants with similar criminal records consistently. For example, if you refuse one applicant based on a criminal record involving stealing, make sure you do the same for other applicants with that particular criminal record.
- Avoid Specific Exclusion: Make sure your policy and practices do not specifically exclude those with criminal records who are of a certain race or national origin.
- Background Checks at End of the Recruitment Process: Employment law experts recommend waiting until the end of the hiring process to do background checks. This ensure hiring managers can assess the applicant’s qualifications before the bias of a potential criminal history.
- Consider Specifics: Dive into how the specific criminal record will relate to job responsibilities and risks.
- Arrest Records are Different than Convictions: Remember that if someone has been arrested, it is not proof that they committed a crime. Arrest records can be inaccurate or incomplete.
- Review Accuracy: Conviction records are usually proof that a person participated in unlawful activity. However, based on different circumstances, you may decide not to rely on a conviction record when making a hiring decision. Perhaps the record is inaccurate or outdated.
- Communicate with Applicants: Give your potential employees a chance to explain their criminal history. Allow them to respond and consider reevaluating based on their response.
Other laws may require your business to take additional steps before even completing a background check. For example, the Fair Credit Reporting Act (FCRA) requires you get consent before running a job applicants background check/criminal record.
Under the Disclosure and Barring Service (DBS), employers in the UK can check a criminal record, no matter what role an applicant applied for. Certain roles, for example, if someone is applying to work as a childcare worker, require a more detailed DBS check. Here is a complete list of the types of DBS checks allowed per role.
Types of DBS checks, include:
– a basic check, which shows unspent convictions and conditional cautions.
– a standard check, which shows any spent and unspent convictions, cautions, reprimands, and final warnings.
– an enhanced check, which shows the same as a standard check plus any information held by local police that’s considered relevant to the role.
– an enhanced check with barred lists, which shows the same as an enhanced check, plus whether you’re on the list of people barred doing the role.
Similarly to the U.S., potential employees in the UK must also fill out a form, acknowledging their consent for the background check.
Ultimately it is up the employer, but according to UK government websites, the country encourages employers (based on the roles they are looking for) to consider hiring ex-offenders, citing that two-fifths of employers surveyed say hiring ex-offenders increased the diversity among their workforce. Uk.gov also sites programs in prisons that aim to help reduce gaps in skills within the workplace.
Here are some other facts touted by the UK government:
- Reduced Staff Absences: 80% of employers of ex-offenders have positively rated performance reviews based on reliability, motivation, attendance, and performance.
- Increased Staff Retention: Data from Marks & Spencer shows ex-offenders place a higher value on having a job, which often translates to higher levels of loyalty and retention.
- In the UK, only 17% of ex-offenders typically manage to get a job within release from prison.
- But 3 out of 4 people in the UK would be comfortable buying from a business that employees ex-offenders.
- Also, ex-offenders who get a job right after prison are 9 percentage points less likely to reoffend.
- 86% of UK employers rate ex-offenders as good at their jobs.
- 92% of employers say an enhanced diversity from hiring someone with a criminal record has enhanced their reputation, resulting in new contract wins.
In addition to promoting this information on its governmental website, the UK also has a program to help pair those with criminal records with potential employees. They recruit via an interest form.
The Scotland government funds the Community Jobs Scotland (CJS) program, primarily to help job applicants with a criminal record, ages 16-29. Part of the program helps people find unpaid work placements, so they are able to build upon existing employment experience or get trained to develop new skills to be transferred to a future workplace.
Under Australian law, an employer may refuse to hire a person with a criminal history, if and only if, the criminal record means the individual will be unable to perform the “inherent requirements” of the specific job he or she is applying for.
Gov.au sites that “in certain cases there is a clear legal requirement that an employee or job applicant should not have a certain criminal record.” In these cases, employers should only ask job applicants and employees to disclose specific criminal record information if they have identified that certain criminal convictions or offenses are relevant to the requirements of the job. Overall, in Australia there is no universal requirement to consent to a background check, unless the job is working with children, or there are other stipulations that would be of high importance.
Canadian government officials say individuals with a criminal record face significant barriers when seeking employment. Statistics show only half of Canadians with a criminal record are able to find employment with 14 years.
Sectors in Canada where a criminal record will preclude employment include government agencies and vulnerable sectors.
Some provinces in Canada do not include criminal records as a status that can be discriminated against, while others include criminal records as protected status, but still allow individual employers to make the decision themselves.
There is no national background check system in Mexico. Instead, a typical background check is a letter from the local/state government that declares no criminal history at the local or state level. If a job candidate needs a background check, the candidate must request a letter.
According to the Chinese government, there are certain jobs that are only available to individuals without a criminal record. China has its own governmental criminal records database, but employers are not allowed to directly check the database. Instead, a job applicant must obtain a Certificate of No Criminal Conviction (CNCC) from a local security bureau. CNCC forms are typically required for director, supervisor, and senior manager jobs within China. Once employers receive the background check, it is up to their own discretion to decide whether or not to offer employment. Also, it’s important to note that empowers in China are not authorized to use background checks through a commercial investigation company. The checks must come from the government database.
Overall, there is much diversity in the regulations various countries have for both conducting background checks on individuals with a criminal record and trying to get them employed upon completing prison time and/or other obligations associated with a convicted crime.
Do you have questions about a country not listed? Contact us! Our team of workforce and legal experts has answers. Also, join our private and exclusive People & Payroll discussion about how to determine whether to hire someone with a criminal record.