Double Jeopardy
As Background Checks Proliferate,
Ex-Cons Get Locked Out of Jobs

By Ann Zimmerman and Kortney Stringer
Staff Reporters of The Wall Street Journal

While Peter Demain was serving a six-year sentence for drug possession, he did such a good job working in the prison kitchen that he quickly rose to head baker. After his release, he filled out 25 job applications at bagel shops, coffee houses, grocery stores and bakeries. All turned him down. Some even asked him to leave the premises immediately after learning of his conviction.

It's never been easy for someone with a criminal history to find work, but it is becoming increasingly difficult. More businesses are using criminal-background checks to guard against negligent-hiring lawsuits, theft of company assets and even terrorism. About 80% of big companies in the U.S. now do such checks, up from 56% in 1996, according to a January survey of personnel executives.

This past summer, Wal-Mart Stores, the nation's largest corporate employer, with more than 1.2 million workers, began conducting criminal-background checks on all applicants in its U.S. stores. Wal-Mart's former policy was to order background checks only for certain personnel, including loss-prevention and pharmacy employees.

Wal-Mart had come under fire for two separate incidents in South Carolina in which its employees were accused of sexually assaulting young female shoppers. Both of the accused employees had prior criminal convictions for sexually related offenses. A spokesman for Wal-Mart says the company was unaware of the criminal records of the two employees in question.

Driven Back to Crime?

Yet as they rely on background checks to screen workers, companies risk imposing unfair barriers to rehabilitated criminals. For society, the implications are huge: If former offenders can't find legitimate jobs, they may be driven back to crime.

"Forty-six million people in this country have been convicted of something sometime in their lives, and our economy would collapse if none of them could get jobs," says Lewis Maltby, president of the National WorkRights Institute, a nonprofit human-rights organization. That figure includes everybody in the FBI criminal-records database, which includes people convicted of relatively minor misdemeanors.

The explosion in background checks is occurring in part because technological advances have made them faster and cheaper. Businesses commonly pay $25 to $100 per search, and the price is dropping. Earlier this year, SecurTest, an applicant-screening company, began offering background checks using its own proprietary system that culls public criminal records. The service, which costs about $10 per applicant, focuses mainly on felony-type convictions.

Bottom line: It's now affordable for businesses to do checks for the very sorts of entry-level jobs in which rehabilitated criminals are encouraged to seek employment.

How businesses use the background checks may be just as important as whether they do. Prisoner advocates are most bothered by "zero-tolerance" policies that bar companies from hiring anyone with a criminal record of any sort.

"The question that should be asked is, is there a legitimate connection between the crime and employment conditions?" says Gil Kline, spokesman for Sentencing Project, an advocacy group on criminal-justice policy.

Wal-Mart says that people with a criminal record could still be offered a job. It will all depend on the nature of the crime, how long ago it occurred, and the type of job being filled, the company says.

That's the right way to use background checks, some experts say. But with plenty of jobless workers to choose from in today's economy, they fear companies will be tempted to reject anyone with a criminal record, despite a federal law that prohibits making a person's criminal history an absolute bar to hiring.

Such scrutiny has tempted some applicants to lie. When Jeffrey Calwise first got out of prison for unarmed robbery, he disclosed his criminal history on work applications. But after numerous rejections, he decided to fib. The Detroit resident got a factory job making $6.50 an hour, but was later fired after the company performed a background check and discovered his criminal record.

Then, Mr. Calwise decided to begin writing "will discuss at interview" on applications that asked about whether he'd been convicted of a crime. That didn't work, either: He got some interviews, but his explanation didn't get him any jobs.

"I'm fairly intelligent, so it has to be my background," says Mr. Calwise, a 40-year-old who is currently in a drug-treatment program and serving probation at a halfway house for a conviction on drug possession.

Mistaken Identity

The U.S. Fair Credit Reporting Act requires employers to give job seekers a copy of their background report if they are rejected due to a criminal offense. The law also permits applicants to challenge the reports. But companies can always cite different reasons for rejecting someone. Another loophole: Employers aren't required to give a person a copy of the report if they conduct the search themselves, such as by mining publicly available court records.

Even law-abiding job seekers can find themselves unemployable if a background check is flawed. Glitches in criminal-database searches can supply an employer with erroneous information on an applicant.

Ron Peterson, who used to work as an insulation technician in California, has applied for more than 50 jobs since being laid off by MCI a year ago but hasn't ever been called in for an interview. After watching a news show on background checks, he decided to buy one on himself. One report claimed a Ronald Peterson with the same birth date but a different middle initial had pleaded guilty to a misdemeanor in Arizona. Mr. Peterson wonders if that's a factor in his protracted job search.

"I wouldn't hire me from what these reports said," Mr. Peterson says.

Under what circumstances, if any, should a criminal conviction disqualify someone for a job? Write to us.