A Policy Review of Employers' Open Access to Conviction Records

By Shawn D. Bushway and Nidhi Kalra2

Employers would prefer not to hire people who will engage in criminal behavior for which the employer incurs costs. In the United States, employers are allowed to use publicly available conviction information to try to predict which candidates are at higher or lower risk of criminal activity. This open-records approach stands in stark contrast to closed-records systems in Europe, where only the government has access to this information and only the government can make determinations about potential employee risk. In this review, we find that (a) US employers’ use of conviction information is not clearly aligned with the risk of future criminal behavior or employer costs, and (b) using such information leads to hiring errors that pose costs to society. Perversely, we find that many of these problems come from government statutes around negligent-hiring lawsuits rather than from inherent preferences on the part of employers. We suggest research that would improve the use of conviction history to predict future criminal risk, and we discuss a hybrid policy for the United States in which the government, not employers, makes the final determination about employee risk. We argue that this approach may result in both better risk predictions and better alignment between employer and societal goals, creating advantages for employers, candidates, and society.

ANNUAL REVIEW OF CRIMINOLOGY Volume 4, 2021