What’s your policy on hiring felons?

“I am always ready to learn, although I do not always like being taught.” — Winston Churchill

The least painful or expensive way to learn best business practices is not by making mistakes but rather by joining the IB family, where we highlight success stories and share cautionary tales about the missteps of others in workshops, in print, and online. Toward that goal, here’s another learning opportunity.

Quiz: What’s your company’s position on hiring felons? If your answer is “we don’t hire people with felony convictions,” I’m about to save you a fortune in attorney’s fees.

Bed Bath & Beyond, Inc., which does business in 1,400 stores across the U.S., including two in Madison, recently made an HR mistake that cost the retailer $125,000 in a settlement in New York. Hint: In addition to punitive damages and penalties, that agreement specified payment of $40,000 for restitution to people with felony convictions who were unlawfully denied jobs.

This cautionary tale begins with an ill-informed HR manager who handed out informational material at a New York job fair. The material included a statement informing potential job applicants that the company didn’t hire felons. Apparently, the statement went so far as to suggest that people with felony convictions not even bother to apply for open positions.

That action is deemed illegal in the state of New York, where the attorney general is cracking down on discrimination against felons who have served their time. Likewise, under Wisconsin’s Fair Employment Act, it is unlawful to discriminate against an employee or job applicant with a conviction record. An employer may refuse to hire a qualified applicant due to a conviction record only if the offense is substantially related to the circumstances of the particular job the applicant seeks. If an employee earns a conviction during the course of employment that is substantially related to the circumstances of the particular job the employee holds, he or she can then be fired for that reason at the company’s discretion, but the offense must meet that condition.

New York law applies to those who have earned “ex-offender” status. Wisconsin’s law is not as forgiving to potential employers, despite an attempt in March 2012 to pass Assembly Bill 286, which would have moderated the Fair Employment Act to help employers dictate terms of hire. Had the bill passed, people who had not been pardoned could have been singled out for discrimination in municipalities that adopted the right to allow different legal strokes for different folks based on conviction status.

On the other end of the spectrum, Hawaii prohibits criminal history questions until employers make a conditional job offer. San Diego is now waging a campaign to remove the question “Have you ever been convicted of a felony?” from job application forms. Employers would be under no obligation to hire and can still do subsequent criminal background checks. This likely was inspired by Rhode Island’s passage of a “ban the box” law in 2013 making it illegal (as of January 2014) to ask about a criminal past prior to a first interview. This law was passed to allow the applicant at least the opportunity to explain his or her employment credentials.



New York Attorney General Eric Schneiderman’s office concluded that Bed Bath & Beyond’s act of summarily “slamming the door on job seekers … is not only wrong — it’s illegal.” The company, which operates 62 stores in New York, agreed — without admitting any corporate-level wrongdoing — to the terms of the settlement, which include conducting training to bring all its practices in line with New York law.

A refresher on both federal and state employment law is always a good idea, and there are HR companies in the area that offer duty of care workshops for managers. Certainly a seminar is less expensive than an HR misstep might be, and training goes toward potential corporate defense.

Personally, I appreciate Wisconsin’s narrow stance, and I also find the ban-the-box movement to have merit. If left to our own judgments, a checked box indicating a felony arrest/conviction would automatically eliminate many candidates who otherwise would be qualified to do a job, further limiting their opportunity to prove rehabilitation and become contributing, taxpaying citizens. The entire premise of our legal system is to rehabilitate rather than punish, and shunning a labor pool estimated at 6 million people is a little nearsighted. (I’d also mention that, although the U.S. has just 5% of the world’s population, our jails house roughly 25% of the world’s incarcerated people, but that’s another blog for another time.)

What’s your opinion?

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