Employers tolerant of minor offenses, intolerant of candidates' marijuana use
- Employers are growing more tolerant of minor infractions that appear in background-check results, so long as the crime does not relate to the applicant's potential job, according to U.S. Product Trends and Insights. The new report from background check provider First Advantage is based on survey responses from customers.
- Retail had the highest percentage of positive drug-screening results of any industry (7%) — nearly twice the average results across all industries, the report said. Marijuana was the leading cause of positive drug tests (79%), but most employers said they wouldn't or couldn't hire someone who tested positive for the drug. Of the 22 states and the District of Columbia that have legalized or decriminalized marijuana, 19 of those locations made the top 50% for positive test results, the report found.
- The report also included that job candidates from 18 to 27 years old had the highest conviction rate on record, followed by those ranging in age from 28 to 37.
Employers' growing leniency for certain infractions on criminal records may be at least partly motivated by this employee-driven labor market with an apparent talent shortage and record-low unemployment. For applicants who have low-level offenses on record, this is good news. Already, organizations have prioritized skills over credentials in their recruiting efforts, accepting candidates without degrees for jobs that would normally require more education than a high school diploma.
And as employers consider talent they may have overlooked before, individuals with criminal backgrounds become more and more employable. This isn't just an issue of talent, however — it involves compliance, too. "Those of you who are really in tune with Title VII and EEOC guidelines, you should already know you should be looking at people with criminal histories," Innova Legal Advisors PC Attorney Heidi Mason said as she sat on a panel at the 2019 Society for Human Resource Management Employment Law & Legislative Conference. "Having an across-the-board ban on hiring somebody who has a criminal record, for most employers, will run afoul with Title VII and the 2012 EEOC guidelines."
Despite the decriminalization of marijuana in some states and localities, drug testing remains a pain point for many employers. In fact, a 2018 XpertHR survey cited marijuana, leave laws and workplace violence as top concerns for HR professionals in 2019. In states where marijuana is legal for medicinal or recreational use, the drug is still illegal under federal law, which classifies it as a Schedule I controlled substance. Employers' drug policies can still forbid marijuana's use onsite; otherwise, they'll have to balance complying with state and local laws with keeping the workplace safe.