The odds are you know someone with a criminal record.
For many of us that's the friend who got busted carrying marijuana or the frat brother who got a ticket for underage drinking in college. We may even be that friend or frat guy ourselves. For other people, it may be more serious, a felony or even homicide, but the numbers are overwhelming. Today more than 77 million Americans have an arrest record of some sort. They're as common as college degrees, with one-in-four adults having been arrested at least once.
As common as college, perhaps, but far more expensive, because while arrests have gotten more common so, too, have background checks. In fact, according to numbers provided by Glassdoor, nearly two-fifths of job seekers report having to pass one during a job application.
And for many job applicants, especially in a still mediocre market, that one arrest is more than enough to torpedo their chances.
Personal and criminal backgrounds have become easier to access than ever, thanks not only to digitization but an explosion in the number of companies which offer to perform record checks. Background checks have become a routine part of not just many job searches but also rental applications, higher education and even dating.
Reportedly Americans have embraced this practice overwhelmingly. According a survey released yesterday by Sterling Talent Solutions, a screening firm, 95% of Americans support mandatory criminal background checks before hiring someone. Nearly half believe that a criminal record should be grounds for not getting hired at all, while another half say that they're more likely to shop at businesses that screen their employees.
To Nick Fishman, vice president of communications with Sterling, these numbers speak to consumers and employees voicing their priorities.
"It's all about safety and security," he said.
"Typically when you see the general media reporting about background checks it's in a very negative light," he added. "What you don't ever about is the 99.999% of the time when a background check goes right. I think what this statistic proves is what want to know about brands that they interact with… that those employers are conducting proper checks on the employees that they hire. And they also want to know that their own employers are conducting background checks."
For the screening industry safety is the biggest selling point. It's a topic that Sterling's report urges, connecting the ideas of personal security and background checks repeatedly (if not causally):
"The vast majority of Americans not only support the need for employment background checks but they also believe these checks are essential to keeping them safe in the workplace and in other places their daily lives take them. In fact, safety pervades the top five topics respondents identified as "most important to be discussed in the presidential debates this year.
This explains why Americans depend on their employers to look into the backgrounds and criminal histories of job candidates prior to hiring them. What's more, very few respondents believe background checks to be an invasion of their privacy—contrary to much of what has been written in the media."
Many other companies raise the same concerns.
"A thorough pre-employment background check is also a preventative measure that enables employers to determine if a candidate's background indicates a possible safety threat to other employees or the public," reads one representative document from the City of Charlotte. The University of Montana makes a similar claim in its own policies.
It's "a very good idea to do a background check before taking on a roommate or going out on a date," urged a 2013 article from Fox News, pushing this notion outside the boundaries of the workspace. "You never know what sort of worrying or dangerous details could be lurking in someone's past."
Yet, as Sterling's report points out, this is a subject that we in the media have covered frequently, and often with a sense of skepticism. The reason is simple: There's rarely any data to support the value of general background checks, and the few numbers often fail to stand up to scrutiny. Take, for example, Sterling's finding that only 5% of Americans don't support a mandatory criminal record search.
Although difficult to determine, at least 2.5% of the American population has a felony conviction, possibly as high as 8.6%. Assuming the numbers most favorable to the company, and that most felons would refuse a background check if they could, this means that among every liberal, every advocate, every privacy enthusiast and every one of those 77 million Americans who are conscious of their arrest record, the overwhelming (vastly overwhelming) majority say employers should be entitled to poke around in their past.
While there is no reason to doubt the sincerity of Sterling's data, at the same time this is a difficult result to square with reality, particularly given the risks to career and personal reputation that can come with any sort of public brush with the law.
When asked, Fishman suggested that the result strengthened Sterling's case for the importance of this process, saying that this shows how "even people who have convictions support background screenings."
Advocates urge that opponents of background checks overstate their concerns. According to Julia Mair, chief marketing officer with Sterling, this is about employees understanding best practices, and employers who simply want to see the full picture of each applicant's history.
"One of the preconceived notions of background screening is that if you have any kind of record, whether it's a felony record or a misdemeanor, that it effects your employability for life," she said, "and that's simply not true."
"We work with over 50,000 employers worldwide," she added. "There's a lot of talent out there and employers are very careful about the way that they use background checks… That is that you look at the severity of the charge, that you look at how old is the charge, that there are a lot of factors that go into looking at that charge. It's not a one strike and you're out event."
According to the Justice Department, however, for many people that's exactly what happens.
In a 2009 study the DOJ found that having a criminal conviction of any sort cuts an applicant's chances of being hired in half.
"Surveys of former inmates suggest that 60 to 75% remain jobless up to a year after release," the report said, with black job-seekers disproportionately affected. This document urged solutions to this "critical issue," arguing that in light of this unemployability "the fact that nearly half return to prison within three years is of little surprise."
As reported by the Brennan Center for Justice, a third of employers admit that seeing an arrest (regardless of charges or conviction) would influence their hiring decisions.
Still the issue of safety and recidivism remains. While many applicants with an arrest record may have minor or nonviolent criminal pasts, employers argue that they're right to protect their workplace from people with a proven history of theft and violence. Indeed, if anything the Department of Justice may have underestimated the problem, with the Bureau of Justice Statistics finding three-year recidivism rates among ex-convicts as high as 67%.
As many hiring managers would argue, in screening for criminal pasts they protect their employees from becoming victims, or at the very least protect the company from losing workers to re-arrest.
"I think that this reflects the mood around security and privacy," said Mair, "and I think that it reflects what's going on around the world which is, 'How do I protect myself?'"
"It's a risk management tool," Mair added. "Employers want to look at all the data points that they can to make sure that they can be confident about what they're doing and that they're hiring the right people. It is not risk management."
Michelle Rodriguez is an attorney with the National Employment Law Project, and much of her work involves advocating for ex-convicts who struggle to find work. A strong advocate of campaigns such as Ban the Box (the movement to eliminate questions about criminal history from job applications), Rodriguez believes that the safety concerns involved with background checks are considerably overblown.
"It is not risk management to just look at what exists on a record, because what is on that record does not represent the person in front of you," she said. "What it represents is that this person has had criminal justice contact, and that could be for a lot of reasons."
The trouble with the safety argument is data. There simply isn't any.
"We don't have data showing that if you're hiring people with records, that your workplace is less safe," Rodriguez said, a gap partially backed up by Fishman.
"We do not have data that supports that," he said, clarifying that "we have not done that research."
While very little data on this subject exists, its absence is suggestive. In states that have passed laws banning employers from asking about criminal history on job applications, there has been no reported evidence of an increase in on-the-job violence or theft. While absence of evidence is not evidence of absence, one might also reasonably expect some reports if workplace conditions had changed.
There have been none, no trends or reported upticks in workplace-related crime. For screening advocates, this presents a problem.
Where is the crisis they're trying to solve?
"Why are we doing background checks in the first place?" Rodriguez said. Calling it a "stereotype," she argued that "If there is no research that really connects the two, then so much of it has to do with assumption."
"And we're talking about 70 million people," Rodrigues said. "We can't treat that group of individuals as if they're not going to be valuable."
The concept of background checks did not, of course, emerge from nowhere. For certain employers it has enormous value. As Fishman and Mair pointed out, many jobs specifically require skills or clearance, and some criminal issues can touch directly on job performance. A DUI, for example, should certainly disqualify most potential truckers, while employers with a fiduciary duty can be subject to huge fines for hiring someone with a history of fraud.
In such cases a criminal background check can be invaluable.
Yet the practice goes far beyond what is narrowly tailored to jobs with specific requirements. With 43% of employers already requiring a criminal record search, and 95% of Americans (reportedly) supporting this, background checks are on the march. For the 77 million people with arrests in their past this can mean lost income and opportunities, as employers pass them over for a slightly easier hire.
In a perfect world, employers would at least use the system as Fishman and Mair recommend.
The best option, Fishman said, is for employers to run background checks only once they've gotten to know a candidate, as the last step in a process that includes the interview.
"You look at an employment background check not as a tool to say, 'Yes, I should hire this person,' or, 'No, I shouldn't hire this person' but as a complete picture," Mair said. "You [should] give them a fair shot to state their case."
For many candidates, though, a fair shot may be more than they get.