Over the years, our blogs have discussed the critical need to conduct personal and professional background investigations as part of your routine pre-hiring practice. This included those of you planning on starting a business or merging or acquiring businesses. Further to this topic we have focused a significant amount of content on a hiring ordinance known in Human Resource circles as Ban the Box (BTB). While adopted by many major cities throughout the country, for the purpose of this blog, we will refer to the New York City Act, as each jurisdiction is different.
The central premise of Ban the Box, which was an amendment to the Fair Chance Act of 2015, prohibits employers from taking adverse actions against job applicants based on their criminal history. The dreaded question for some “Have you ever been convicted of a crime” can no longer appear on the basic employment application. Instead, employers must wait until later in the hiring process, which is often after an interview or a conditional job offer, before inquiring about criminal records. A study of New York City hiring practices showed that applicants were 50% less likely to be called back or offered a job if they stated they had a criminal record. The Ban the Box movement was started in 2004 by an organization called All of US or None a national civil rights and human rights coalition that was comprised of formerly incarcerated people. For a more detailed history of the law, please refer to our past blog called Business Owners Beware-Background Checks And How To Avoid A Bad Hire, https://intesecurity.com/business-owners-beware-background-checks-and-how-to-avoid-a-bad-hire/ as the purpose of this months blog will cover the exemptions to this BTB law and the importance of properly assessing criminal histories to protect yourself against a bad hire.
As licensed private investigators hired to conduct pre-hire background checks, we would be remiss or perhaps negligent if we did not include criminal record searches as part of our investigative process. In fact, in most instances, a general query of all national databases utilized by investigators today already includes some level of criminal record histories including violations and infractions associated with motor vehicle DWI suspensions and license & registration revocations.
When a criminal record shows up on a foundational database search, it would be negligent for the investigator to withhold that information from their client. It is important to note that an employer always has the right to hire an investigator without advising the applicant, and the results will always remain confidential. Again, since there is no request by the employer to disclose a new hire’s criminal history, there is no obligation by that employer to make that information known to an applicant. If the employer learns about a criminal history prior to any offer, they now have the discretion to hire that individual or not. As investigators, a criminal record “hit” represents a red flag and one that should be weighed carefully by the employer.
The Exemptions
There are certain job/industry exemptions to the Ban the Box rule that are worth noting. Some industries or jobs, particularly those requiring security clearance or involving work with vulnerable populations such as schools, healthcare professionals,and banking, to name a few, will be exempt from Ban the Box laws. One such exemption would be law enforcement and public safety officials as background checks, including criminal searches, are essential to ensure the integrity and safety of personnel in these critical roles. Federal jobs and contractors are exempted as these positions may involve access to classified or sensitive government information. The most recognizable exemptions are schoolteachers, faculty, and staff employees. This also includes early learning child and daycare facilities. In most jurisdictions, federal and state laws mandate criminal background checks for individuals seeking employment in K-12 grades, and some higher education institutions.
As writers addressing many sensitive security and safety topics, you are aware that we do not take sides or convey opinions in our blogs that are not researched or consistent with the facts. We believe in following the law and also feel strongly that people deserve a second chance in life. Applying the law using a balanced approach to complex hiring protocols not only protects the employer but their constituents.
In a recent New Times Article titled An Elite School and the Criminal It Welcomed by Katherine Rosman, written December 12, 2024, a prestigious private school located in New York City is alleged to have knowingly hired a teacher with a serious felony conviction. Whether or not true, these allegations will not be litigated in this piece.
The hiring occurred during the pandemic when there was a shortage of qualified teachers, and the school took the position of giving this individual a chance. Sadly, according to the article, It did not go well for the school or its students who were victimized. While the teacher’s original conviction was for a financial crime associated with embezzlement and grand larceny, the offenses were serious and reflected an egregious disregard for an elderly couple who employed this individual. The teacher was subsequently arrested on school grounds and charged with using a child in a sexual performance, promoting a sexual performance by a child, and disseminating indecent material to children.
While it is often impossible to foresee all the flaws in an individual’s character, sexual predators often leave a trail of behavior and disturbing relationships that are indicators for investigators and mental health professionals. When any institution knowingly hires an individual with a serious felony conviction, particularly one that indicates poor judgment or a history of harm to others, it raises serious concerns about the institution’s hiring practices and duty of care. These situations could have legal, ethical, and safety implications for the institution, its principals, shareholders, executive staff, and the broader community.
While the presence of certain behaviors or criminal history does not automatically label someone a predator, recognizing these patterns and red flags can help prevent harm and protect vulnerable individuals. Sadly, many predators intentionally position themselves and seek out roles of trust (teachers, clergy, coaches) to reduce suspicion.
What are the Red Flags-Concerning Patterns in Personal History
Past Allegations or Convictions: a history of misconduct accusations or convictions, even if dismissed or minimized, should be closely examined. Repeated accusations, even without legal consequences, are a red flag.
Frequent Job Changes: Sudden or unexplained departures from positions, especially in environments involving vulnerable populations (e.g., schools, camps, care giving roles).
Inappropriate Activity: Viewing, sharing, or possessing sexually explicit material involving minors or non-consensual acts is a clear and criminal red flag, seemingly benign behaviors such as gifting, excessive attention, or domineering interactions can also signal inappropriate intent when observed in certain contexts. These behaviors, while not illegal in isolation, often fall into grooming patterns that predators use to build trust and manipulate their targets.
Has Ban the Box Been Successful
While Ban the Box laws were intended to reduce employment discrimination and provide fair opportunities, research has reflected limited desirable outcomes in practice. The unintended consequences, particularly in the form of racial bias and late-stage discrimination, highlight the need for additional reforms beyond delaying criminal record inquiries. The success rate of BTB laws in achieving their primary goal—improving employment outcomes for people with criminal records—has been mixed and is often viewed as limited based on recent research. Despite the positive intentions behind the act, studies reveal that its practical impact on hiring outcomes has been less significant than anticipated.
Discussion
Assessing the need for criminal history records during the hiring process is a sensitive task that requires balancing workplace safety, legal compliance, and fairness to the applicant. Businesses must take a structured approach to criminal history requests and findings in order to formalize their approach thereby reducing any inference of bias and adhering to best practices and applicable laws. Hiring professionals reviewing criminal histories need to focus on the relevance of past offenses to the specific job/role that person is being hired for.
As investigators we look at how long ago an offense occurred and the level of crime committed. Was there physical harm involved or severe financial hardship to the victim? These are just some of the important factors considered in our assessment process. Older offenses, minor infractions, and violations may carry less weight, particularly if there is evidence of rehabilitation. A single isolated incident may be less concerning than a pattern of repeated offenses.
With the rise of technology and the dependence on quickly accessible data and turnaround time, many HR managers are relying on data mills for their pre-hire background searches. Cheap online platforms, including those using AI algorithms offering comprehensive background checks often have a high failure rate validating data, producing faulty financial reporting due to comingled data profiles, leaving assessing performance and character to untrained professionals or computer software.
At Integrated Security Service, Inc., our staff of seasoned investigative professionals, some with extensive law enforcement backgrounds, are available to assist businesses and private parties with their confidential comprehensive background screening needs. Access to real-time confidential data is just the tip of the process when evaluating and assessing the character and integrity of your subject. The detailed eye of our investigative staff will identify patterns and anomalies often missed by online searches. Additionally, we work closely with many employment attorneys whom we could recommend for more sensitive pre and post-hiring matters. Our office is operational 24/7 and can be reached toll-free at (888) 808-9119, or through our website at www.intesecurity.com
