More and more companies are hiring people with arrest and conviction records and trucking is no exception. More than 70 million Americans have an arrest or conviction record – about one in three adults – and 19 million have felony records. With the current tight labor market, employers are reaching into this pool for workers.
How many have become drivers or technicians isn't known, but anecdotally, the numbers seem to be rising.
One indication is the interest at driving schools. "I'm starting to see more willingness [among carriers to hire those with records], says Don Lefeve, President and CEO of the Commercial Vehicle Training Association (CVTA), the largest national trade association representing commercial truck driver training institutions. "I've started hearing more and more carriers that are willing to look that way… I'm hearing more and more of that."
None of the largest carriers Fleet Owner contacted would discuss the matter although one noted that hiring those with records is on a case by case basis. Another company also declined to comment because "they didn't want to get overwhelmed with applications." Fleet Owner also reached out to several drivers with felony records, but they also declined to discuss the matter. One said tersely: "It's all behind me."
One carrier that would discuss the issue is RCS Trucking & Freight in Front Royal, VA. Greg Warner, the company director of safety, said the company has hired drivers with felony records and they have worked out well. He added that when he began working in the industry, he and others never considered hiring those with records but times have changed.
"One [driver with a record] actually was employed here when I came here. He had a felony on his record. He did his time. He left us and came back three months, four months later, and just left us again. He’s a welder by trade. He follows the welding in the oilfield. I don’t have too much problem as long as we can see that they've completed their time. A lot of it is based on the interview."
Previously, Warner ran a driving school and enrolled those with felonies. One student had committed a double homicide. "I was successful with him," says Warner. "I talked to him at length, and I said 'Dude, I tell you what. It’s going to be hard to find you a job, but I’m going to do what I can.' We found a company that hired him, and I don’t know whatever happened to him after that, but they had hired him. He worked there for six or eight months, and then we lost touch."
In general, those with criminal records make good employees, according to Maurice Emsellem, Fair Chance Program director at the National Employment Law Project, a non-partisan, not-for-profit organization that conducts research and advocates on issues affecting low-wage and unemployed workers. He cites recent surveys of HR professionals and managers that noted the quality of their hires of people with a criminal record was equal to or better than the quality of individuals hired without a record. Employees with a criminal record are also less likely to leave the job voluntarily, more likely to have a longer tenure, and they are no more likely than people without records to be terminated involuntarily, studies show.
He notes that 33 states and some cities have “Ban the Box” laws that do not allow an employer to ask about a criminal record until later in the hiring process. Warner adds: "I just wait for the applicants to bring it up during the interview."
According to federal statutes, employers may not discriminate against those with felony records. "The federal laws are, No. 1, the Civil Rights Act, Title VII, which is the anti-discrimination law. And that applies because criminal background checks have such a big disproportionate impact on people of color that they implicate Title VII, and the EEOC has issued major guidance clarifying for employers what the standards are when they ask about backgrounds," Emsellem says.
"Basically, an employer can’t impose any blanket restrictions, like no felonies going back forever – that sort of thing. They have to focus on the age of the offense, the nature of the offense, whether it’s directly related to the job, and then look at evidence of rehabilitation. It requires an individualized assessment. That applies to all employers – public and private. That's the basic framework that every employer should apply when they’re doing background checks." (Employers may reject an applicant based on a particular conviction. For example, if a driver has to handle money, an employer may decide that a convicted embezzler may not be a good fit for the job.)
The other federal law governing hiring is the consumer law that regulates credit checks and everything related because background checks are under the same law that governs criminal background checks. There's a requirement that the information an employer is relying on is accurate – and a lot of these records are pretty inaccurate."
Does having a person with a felony record increase an employer's liability if that driver commits a crime while on the job? "This falls under the doctrine called 'negligent hiring,' says Emsellem. "Negligent hiring is not specific to issues involving people with records. There are all sorts of people who do harm at work, and it happens in different situations. Unfortunately, when something happens, the first question everybody asks is 'does the person have a record?' Should the employer have known? But the empirical reality is if you have a record, you’re no more likely to screw up on the job than anybody else. If the employer followed the Ban the Box laws and does a background check at the end of the process, but doesn’t ask at the beginning, that is a clear-cut formalized procedure that will likely prevent a negligent hiring lawsuit because you’ve done your due diligence. You have a thoughtful process in place, you have standards, here’s the record that’s related to the job, here’s the record that’s not. It's really important to understand the reality of the situation, not just jump to the conclusion that just because you hire somebody with a record, you’re going to get sued."
The DOT has only one felony conviction on the books that will prevent someone from driving. "Specifically, in terms of the U.S. Department of Transportation, which is responsible for interstate commercial operations, felony convictions for human trafficking permanently disqualifies, by Federal law, from possessing a commercial driver’s license," an FMCSA spokesperson said.
A Hazmat endorsement, however, has many disqualifying conviction criteria such as treason, smuggling, weapons violations and more. Emsellem says, though, that TSA has granted close to 90% of waivers based on rehabilitation and other factors.
Two federal programs help employers after they have hired someone with a record. The first is the Federal Bonding Program from the Department of Labor. It provides fidelity bonds for “at-risk,” hard-to-place job seekers. The bonds cover the first six months of employment at no cost to the job applicant or the employer.
The second program is The Work Opportunity Tax Credit, a Federal tax credit available to employers who hired individuals from certain target groups, like those with criminal records, who have consistently faced significant barriers to employment.