Association for Public Policy Analysis & Management

Recent expansions in the use of criminal background checks have encountered new constraints intended to balance valid employer concerns with promoting employment for individuals with criminal records.  These constraints eliminate blanket bans on hiring individuals with criminal records and focus on differentiating between “low” and “high” risk individuals.  While empirical research provides limited specific guidance to background check decision makers, there is a body of growing research demonstrating that the probability of recidivism declines with time since last offense.  Rearrest probabilities for individuals with prior arrests who have stayed clean begin to converge with arrest probabilities for those without records after 7 to 10 years have passed (Kurlychek, Brame and Bushway 2006, 2007).  The Equal Employment Opportunity Commission integrated this research into their 2012 guidance to employers and strongly recommended incorporating time since last conviction information when making hiring decisions.  Practitioners are increasingly incorporating these policies into background check decision rules, but prior research has not yet examined the potential impacts of a time since last conviction policy for individuals with records. 

This study provides the first causal estimates of the impact of a time since last conviction policy on employment outcomes for individuals with prior conviction records.  This policy is evaluated within the specific context of New York State Department of Health’s mandated criminal history background check process for individuals who are provisionally hired to work in direct access care jobs in nursing homes and home health care firms.  In this background check process, individuals with “old” criminal history records—defined as 10 years or longer since last conviction—should be cleared unless other evidence indicates this person presents an “unreasonable risk” to property, safety, or welfare.  This policy results in a 20 percentage point jump in the probability of clearance at the 10 year threshold.  Using a fuzzy regression discontinuity approach, we generate estimates of the impact of clearance on employment and earnings.  Due to small sample sizes near the threshold, we supplement these analyses with instrumental variable and fixed effects instrumental variable methods.

Similar to findings from the broader sample (Bushway, Denver, and Kurlychek 2015), clearance has a positive impact on employment and earnings for individuals influenced by the 10 year since last conviction policy.  Even though individuals in this sample had high levels of employment on average prior to DOH’s background check, and those denied clearance could potentially obtain employment in other industries with shorter time since last conviction policies, the bump in clearance from this 10 year rule generates benefits for individuals with records.  While these findings cannot speak to the employment benefit/risk of recidivism tradeoff, they contribute to the policy conversation surrounding time since last offense rules by providing estimates of the potential benefits on the employment opportunities side.