Criminal record checking and employment: The importance of policy and proximity
| Author | Georgina Heydon,Bronwyn Naylor |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
| DOI | 10.1177/0004865817723410 |
| Subject Matter | Articles |
Article
Criminal record checking and
employment: The importance
of policy and proximity
Georgina Heydon
Centre for Global Research, RMIT University, Australia
Bronwyn Naylor
Graduate School of Business and Law, RMIT University, Australia
Abstract
Employment is essential to the rehabilitation of offenders, yet employers routinely check
criminal records and rely on them to deny offenders employment. To manage these practices
many jurisdictions use spent conviction and anti-discrimination schemes; there have also been
recent campaigns aimed at ‘banning the box’, requiring that questions about criminal record
are deferred to a later point when the person could address them in interview. This article
draws on findings from surveys and interviews with human resources personnel about their
criminal record checking practices to identify some key concerns of employers and highlight
areas for challenging employer practices. The study highlights the influence on employment
decisions of external factors – legislation, government policy and industry regulation – and of
internal considerations about proximity of the decision maker to the applicant and potential
proximity to other staff. The willingness of some employers to engage with applicants opens
up the possibilities for people with a criminal record to demonstrate their readiness to desist
from offending and to counter stereotypes about offenders. Where there is no scope for, or
willingness to attempt, such discretionary engagement, however, it is likely that employers will
prioritize a risk-averse approach to employment, pre-emptively excluding potentially pro-
ductive employees, and putting such ex-offenders at risk of deeper exclusion.
Keywords
Criminal record, desistance, employment of ex-offenders, employment policy, proximity,
rehabilitation
Date received: 17 October 2016; accepted: 3 July 2017
Australian & New Zealand
Journal of Criminology
2018, Vol. 51(3) 372–394
!The Author(s) 2017
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DOI: 10.1177/0004865817723410
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Corresponding author:
Georgina Heydon, Centre for Global Research, RMIT University, GPO Box 2476, Melbourne 3001, Australia.
Email: georgina.heydon@rmit.edu.au
Introduction
Former offenders face myriad obstacles to ‘going straight’ and succeeding in their desis-
tance from criminal behaviour. Fulfilling employment is clearly linked to reducing
reoffending and increasing social participation of ex-offenders, and at the same time
increases community safety (Graffam, Shinkfield, & Lavelle, 2014; Lockwood, Nally,
Ho, & Knutson, 2012; Pager, 2007; Sampson & Laub, 1997; Uggen, 1999). It provides a
legitimate income as well a socially valued role and structured lifestyle.
However, a criminal history brings with it a level of stigma that makes it likely that an
employer will refuse to employ ex-offenders (Holzer, Raphael, & Stoll, 2006; Pager,
2007; Uggen, 1999).
A significant question for the ex-offender is therefore whether to disclose a criminal
record when seeking employment. Many anticipate rejection, but also articulate the
importance of honesty with their potential employer (Cherney & Fitzgerald, 2016).
Disclosure can be part of the ex-offender’s task of establishing their narrative as a
person actively desisting from crime (LeBel & Maruna, 2012; Liem & Richardson,
2014). Employers can also say that they value an applicant disclosing a criminal history
(Cherney & Fitzgerald, 2016, p. 25); certainly ex-offenders report that failure to disclose
a criminal record, which is subsequently revealed, can lead employers to terminate
employment citing their dishonesty (rather than their criminal record).
However, employers are increasingly likely to seek criminal record checks as part of
the recruitment process (see Larrauri, 2014, pp. 52, 55) and as will be discussed here,
many Australian employers consider they are required to do so, under statutory obli-
gations or industry practice, and in some cases believe they have little choice but to
exclude an applicant with a relevant criminal history.
In 2015–16 the Australian national agency CrimTrac (2016) provided over 4.3 million
record checks, well over double the number sought – 1.7million – in 2005–6.
1
A range of
occupations now require a criminal record check, from teachers to lawyers to bouncers
to taxi drivers, as discussed below, and there are even more extensive checking require-
ments where a person will be working with vulnerable populations such as children and
older people, or in occupations related to justice or security (see e.g. Working With
Children Act 2005 Vic). The mere fact of an employer stating that a record check will
be required can lead ex-offenders to ‘self-exclude’ or more generally disengage from the
job markets (Apel & Sweeten, 2010; Australian National Council on Drugs, 2013).
Cherney and Fitzgerald (2016, p. 22) found that many of the people in their study
avoided applying for particular professional jobs ‘due to the anticipation of a criminal
record check’. Even if the applicant does proceed they may find themselves excluded at
the first stage with a question asking whether they have a conviction or have even been
charged with an offence. It can therefore be difficult or impossible to establish their
narrative of desistance. As Cherney and Fitzgerald (2016, pp. 27–28) observe:
...it needs to be recognised that in the context of gaining employment, mandatory criminal
record checks and public offender registries deny ex-offenders individual agency — or, more
specifically, the ability to act independently and make their own choices [ref omitted] about
self-disclosure and how they might best manage their stigma in the workplace and present
themselves to others.
Heydon and Naylor 373
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