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September 18th, 2019 | Gabrielle Langlinais, Strategic Solutions Consultant – Healthcare SME, Healthcare & Life Sciences

Hiring a Candidate with a Criminal Past: Risks, Regulations, and Rewards

employees conferring at a meeting

Nearly one in three Americans have a criminal record, according to the National Conference of State Legislatures. And with over 90% of employers conducting criminal background checks to screen job applicants, committing even a minor offense can significantly affect a person’s chances of getting hired.

Employment-based consequences of having criminal records are highly pronounced in healthcare, perhaps more than in any other industry. According to the National Inventory of Collateral Consequences of Conviction (NICCC), 25% of employment-related consequences are connected to opportunities in the healthcare sector.

Differences in State Restrictions

Most states in the US have laws that restrict hiring individuals with criminal records for healthcare roles. Some of these restrictions are mandatory and automatic — particularly if the crimes involved elder abuse, sexual offenses, were violent in nature, or involved controlled substances. For instance, in the state of Missouri, any individual with a conviction for controlled substance offenses, crimes involving fraud, crimes of violence, and sexual offenses is automatically ineligible to gain employment in mental health facilities.

For other offenses and roles, the restrictions are often discretionary and are typically linked to acquiring licenses and certifications for those jobs. In Alabama, for example, the State Board of Chiropractic Examiners has the discretion to issue a license to practice chiropractic medicine to an individual previously convicted of a felony or misdemeanor.

“There is a misperception that there’s a broad disqualification if you have a criminal conviction of any kind, then you can’t work in the healthcare industry. That’s simply not true,” says Michael Pope, Executive Director of Youth Represent, a non-profit organization dedicated to improving the lives of young people affected by the criminal justice system, in an interview with Sterling.

Second Chance / Clean Slate Laws

Many states, including New York, Indiana and Ohio, have passed “second chance” or “clean slate” laws to limit the impact of collateral consequences of criminal convictions. These laws allow individuals to apply to have their criminal records for certain offenses sealed and/or expunged if said records have remained clean for a specified time.

“These clean slate bills provide an opportunity for individuals to be valued on talents and skills, rather than a single event that happened in their past,” Pope stated to Sterling.

When records are sealed, they no longer show up on standard background checks conducted by employers. Only law enforcement bodies and employers who must consider sealed records under federal law will have access to them.

These laws didn’t materialize in a vacuum. Advocacy and non-profit groups like Youth Represent, Center for American Progress, National Employment Law Project and Community Legal Services (CLS) have worked behind the scenes for years through campaigns, initiatives and discourse to push for clean slate legislation across the country.

Despite the sealing and expungement opportunities presently in place, advocacy groups are now trying to ensure that those opportunities are not disproportionately impacting specific demographics in communities.

Working to Promote Fairness

“One of the things we’re concerned about is the second chance gap,” Pope relates. “Essentially, you’re seeing these expungement laws and sealing opportunities come up in different states, but they frequently require a motion or petition to the court. In some circumstances, they also require paying a filing fee. And what we’re starting to see is an impact on those that are able to have access to that sealing, particularly from socio-economic and racial lens. We’re now looking very closely at finding opportunities for automatic sealing, where an individual does not need to have access to an attorney or funds to be able to get their second chance.”

A few states have recognized this problem and are beginning to implement technology to automate record sealing for eligible individuals, thereby closing the “second chance gap.”

Automatic Sealing

Last year, Pennsylvania became the first state to pass a clean slate bill that will, by 2020, automatically seal over 30 million criminal records. People who committed non-violent misdemeanors, have stayed out of the criminal justice system for up to 10 years and have paid all their court fines will automatically qualify.

Other states are following quickly in Pennsylvania’s footsteps. In March 2019, Utah became the second state to sign into law a bill to automatically clear the records of individuals who meet its requirements for expungement, according to a Community Resources for Justice article. The states of Louisiana, Connecticut, and California are also considering automatic clean slate programs for some offenses, according to articles by the New Haven Register and the Los Angeles Times, respectively

Expanding Workforce in Healthcare

As the healthcare industry continues to grow, there is a persistent need for skilled workers. Between 2018 and 2028 decade, there are expected to be nearly four million additional new jobs in the healthcare and social assistance sector, says a Bureau of Labor Statistics news release. Month to month employment increases reported by the Bureau support that prediction. For instance, in July 2019 , there were over fifty thousand new jobs in the healthcare and social assistance sectors combined.  According to a report by the National Employment Law Project, some healthcare employers are looking to expand their workforce by increasingly hiring individuals with records. Moves like this also serve to advance their diversity and compliance with employment laws.

“The healthcare industry is placing more focus on examining their practices surrounding the utilization of criminal background checks,” says Pope.

“Broadly speaking,” he explains, “this issue affects the whole country, but it’s really exciting to see that the healthcare industry, in particular, is starting to ask questions about how they can be thoughtful about what criminal backgrounds actually represent, and how that impacts employees’ ability to successfully do their job and to be a valued member of the team.”

Addressing Talent Shortage

“A huge challenge for employers in the healthcare space is the shortage of talent,” relates Val Poltorak, General Manager of Sterling’s Healthcare Industry Practice. “While these clean slate laws provide an opportunity for both candidates and employers, it also brings a level of risk and uncertainty. It’s more important than ever that healthcare and life sciences companies have a trusted background screening partner to help them navigate the ever-shifting regulatory landscape.”

Sterling’s Healthcare team is comprised of a group of screening industry experts with deep experience, who are focused solely on helping hospitals, health systems and life sciences companies across the spectrum create, implement and manage smarter, safer and more efficient hiring and retention programs. To learn more about Sterling Healthcare’s solutions, visit www.sterlingcheck.com/healthcare.

The information contained herein is for informational purposes only.  Clients are encouraged to consult with their legal counsel the impacts of any requirements.  Sterling is not a law firm, and none of the information contained in this notice is intended as legal advice. This and other important information can be found on the Sterling website: https://www.sterlingcheck.com/

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This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.