Future Tense

Workers With Criminal Records Struggle to Find a Place in the Gig Economy

Companies like Uber and Lyft promise they’re creating opportunities for people shut out of traditional employment, but their opaque background check policies present a barrier for some.

Three deliverymen, with the third highlighted in red as though flagged for removal.
Photo illustration by Slate. Photos by Getty Images Plus.

In March, Chris C. was disqualified from driving for Uber. The reason? Two criminal convictions had been found in his most recent background check.

The news confused Chris for a few reasons. For one, his convictions were relatively minor, one for a fake ID (officially, criminal possession of a forged instrument) and one for theft. For another, they happened nearly 20 years ago (specifically, in 1999, when he was 19) and had never disqualified him from other jobs. Then there was the real puzzler: He had been driving for the ride-hailing platform for nearly two years without the issue ever coming up before.

After failing to get further explanation from Uber as to why this happened, Chris (who asked to use only his first name and last initial for privacy reasons) took his lingering questions to the same place many other current or would-be drivers with criminal records go for answers—one of the online forums for drivers.

Looking at posts on Uber and Lyft subreddits and specialty forums like uberpeople.net, you quickly see that Chris is not alone in his confusion. Variations of his story and questions about what sort of criminal or driving records might disqualify someone from working for companies like Uber or Lyft clutter the forums. Posters debate questions like whether a 10-year-old drunken driving conviction might get them rejected from driving for the ride-hailing companies, or whether any of the delivery services would consider hiring a woman with a decade-old, nonviolent, non-drug-related felony record. Individuals’ experiences often contradict each other. The biggest source of consensus is that the company policies are confusing and seem to be randomly applied.

The confusion that fills these forums isn’t surprising considering the lack of guidance Uber, Lyft, and other on-demand companies offer about their criminal record policies for contracting gig workers. The information the companies provide publicly on their websites is often confusing, brief, hard to find, or, in some cases, nonexistent. And for the estimated 8 percent of adults in the U.S. with a felony conviction—plus many more who have lesser convictions and infractions that can also get flagged in background checks—the lack of transparent policies only exacerbates the difficulties they face finding work and participating in society.

Given the personal nature of their workers’ responsibilities—driving you around in their cars, showing up at your doorstep—these on-demand companies need to take responsible measures to keep their customers safe. There are horrific stories of what happens when safeguards fall short. People with records of sexual assault, kidnapping, and other types of violent offenses are banned from these services, which also have to follow a complex set of employment and public safety laws that can vary by state and municipality.

But not all criminal records are equal, and not all criminal records are predictive of future dangerous behavior. What’s more, because gig-economy platforms like to classify their workers as independent contractors, would-be and current workers aren’t usually granted the same legal protections against discrimination as applicants or hires classified as employees. So there’s a difference between those looking to work at a grocery store or office building versus those looking to work for TaskRabbit or Amazon Flex. Given that many gig workers shift across multiple platforms, it can also be hard to discern what might be disqualifying on one platform and what isn’t on another. And just as workers with criminal records deserve to understand how past convictions might affect their opportunities, customers who use gig platforms deserve to understand how these companies decide who will greet you on the other side of an app request.

To try to get a sense of how criminal records are weighed in the gig economy, I contacted eight popular on-demand companies about their policies. I asked each company which specific criminal offenses would disqualify someone from working for its service. In cases where companies published some information about their criminal records policies online, I also asked them specific follow-ups related to those published policies. For example, if the company stated that certain felony convictions might disqualify a candidate, I asked which specific categories of convictions and timelines of records they considered acceptable or unacceptable from a candidate. If a company indicated it would conduct an individualized assessment to make a determination about a candidate, I asked how such an assessment would be conducted. The patchwork of responses I received began to show how complicated it can be for people with criminal or driving records to figure out.

See a full chart of the responses from Uber, Lyft, Instacart, Amazon Flex, Grubhub, DoorDash, Postmates, and TaskRabbit below:

While some companies identified certain more obvious convictions as disqualifying—among them violent offenses, sexual assault, and kidnapping—all fell short of providing a comprehensive overview of their guidelines. Even Uber, which provided the most details of the eight, only did so by referencing a chart buried in a 2015 blog post about safety practices in California. (A spokesperson clarified that Uber generally uses the same guidelines laid out in the chart nationwide while also noting that some additional requirements come into play depending on the driver’s jurisdiction.) It’s unclear how many applicants see this chart given that it’s hidden in the archives of the Uber Newsroom and does not appear on the general help page about background checks that Uber provides for current and would-be drivers. (A Google search, for example, would likely direct you to the latter.)

Between the patchwork of limited information that these companies provide on their websites and the additional, highly general responses Slate was given, it’s easy to see how potential candidates whose convictions fall into grayer territory may get confused or turned away altogether.

Part of the fogginess surrounding these policies is related to the complex regulatory waters companies face when operating across jurisdictions with different employment and anti-discrimination codes. For example, some states have laws that limit the number of years a criminal background check can look back for particular crimes, or what type of felony is automatically disqualifying in a particular sector.

There are also federal laws aimed at protecting employees from discrimination through the Equal Employment Opportunity Commission. The EEOC provides official guidance on how criminal records can be considered in hiring. Specifically, the EEOC stipulates that “employers shouldn’t use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and doesn’t accurately predict who will be a responsible, reliable, or safe employee.” (Enforcement, unsurprisingly, gets complicated.)

Key to EEOC regulation, however, is the word employee. By classifying workers as “independent contractors” rather than “employees”—as gig economy companies like Uber and Lyft do—companies seek to exempt themselves from various employment laws that would otherwise hold them to more rigorous standards on issues such as nondiscrimination and compensation. Their insistence on workers being “independent contractors” is, however, highly contentious. And it remains to be seen if it will hold up to current and future court challenges.

Laura Padin, an attorney for the National Employment Law Project, said that while this designation is in limbo, the government should expand employment discrimination statutes to cover both employees and contractors. Such a move would provide some much-needed clarity and protection for on-demand workers, Padin said, though she hopes most of these workers will ultimately be legally considered employees. (A change that, given current trends, is unlikely to happen.)

While some criminal offenses legally and logically disqualify applicants—whatever their designation—from certain work, others are less clear. Uber and Lyft’s ban on drivers with a sexual assault record definitely makes sense. But, for example, Uber and Uber Eats’ prohibitions on applicants with any felony convictions in the past seven years get into more ambiguous territory. It could disqualify someone with a six-year-old felony marijuana possession conviction on their record from delivering you burritos on their bike.

It’s also worth noting that the third-party services these on-demand companies often use to conduct criminal background checks and arrive at rejections have come under fire for both reportedly skimping on the screening process and for erroneously flagging applicants for rejection. Such issues highlight the dual pressures these companies have when it comes to deciding who gets to work on their platforms. On the one hand, high turnover and customers who demand quick, seamless service mean that on-demand companies are constantly jockeying for a steady stream of workers (and doing so in a way some critics say cuts corners). On the other hand, these companies also face pressure from a public that stigmatizes criminal records.

Part of this stigma comes from a legitimate concern for safety and liability. But it also comes from a less-than-legitimate “generalized public equation of a criminal record with dangerousness,” says Nayantara Mehta, also an attorney with the National Employment Law Project. The false assumption that people with criminal records are necessarily dangerous leads some companies to institute blanket policies that exclude people with records automatically, without much consideration of what those records look like. Mehta thinks that if platforms care about creating opportunities for communities that are shut out of traditional employment, they need to be more transparent about which offenses are disqualifying and what mitigating factors, such as time elapsed since a conviction, are relevant. Unclear and inaccessible policies, she said, represent “an additional barrier for people with arrest and conviction histories to even understand or to push back on a rejection.”

Many of these companies say they want to build a more inclusive workforce where workers set their own terms. They also all say they want to keep their customers safe. But a lack of clarity and transparency about decisions over who gets to use their platforms seems to contradict both of these aims.

It was this kind of clarity, after all, that Chris was seeking after he was cut off from driving for Uber back in March. When I reached out to him recently via email, he said that he had difficulty getting answers from the platform.

He explained that he wrote to Uber once in March and again in June asking why, after passing an initial background check and driving for Uber for two years with no problems, two old convictions (for the fake ID and for theft) became an issue. In the first email reply, the company referred him back to the more recent background check but didn’t offer any specific explanation related to his case. In the second, he received a message from Uber that said, in part, “We completely understand where you’re coming from and the details you provided has [sic] been noted accordingly.” The representative suggested that if Chris suspected that the convictions listed in the report were inaccurate, he could file a dispute with Checkr, the third-party service Uber used to run it.

But Chris’ problem wasn’t that the information was incorrect. His problem was that he didn’t understand why two relatively minor convictions from 20 years ago—convictions that didn’t seem to initially matter—were suddenly disqualifying in his case at all.

When contacted independently by Slate, a representative from Uber explained that Chris was disqualified because in Seattle, where he works, a local law requires Uber to disqualify any driver convicted of “theft, fraud, robbery, burglary, assault, sex crimes, alcohol, drugs, or prostitution,” regardless of when that conviction occurred. (Uber had not provided this explanation to Chris.) But the law Uber cited isn’t new, and Chris hadn’t moved. Slate followed up to ask why Chris had been allowed to drive previously with no problems, but Uber, as of this writing, has yet to respond. So it’s not clear whether Uber’s prior background checks on Chris failed to surface his 20-year-old convictions, or whether Uber knew about them and didn’t follow the Seattle rules.

Unlike some other drivers, Chris hasn’t been set back too much from the lack of work. He says his disqualification from Uber didn’t affect his life that much because driving wasn’t his only source of income; it was just “a quick way to make extra travel money.” Plus, he says, there’s always Lyft. Though he hasn’t driven for the rival ride-hailing company in a while, he said that when Lyft conducted his most recent routine background check—one that occurred after his disqualification from Uber—he wasn’t made aware of any problems resulting from it.

But other drivers with records? They might not be so lucky.