Introducing a Toolkit for Second Chance Employers

TL;DR

  • Employers are under increasing social and political pressure to more aggressively consider individuals with criminal histories.
  • Most businesses are already “second chance employers,” but many do not have the formal guidelines in place to ensure that former offenders are considered for employment in a thoughtful and consistent manner.
  • Over the next six months, Imperative will be rolling out our Second Chance Employer Toolkit, a free collection of interviews, articles, tools, and webinars designed to equip employers to make fair, well-informed, and legal hiring decisions, regardless of industry or location.

First, a brief history of second chance employment.

In 1975, a federal court ruled that an employer who automatically excludes individuals from employment consideration simply because they have a criminal record will likely create a disparate impact in violation of Title VII of the Civil Rights Act—not because having a criminal history puts someone in a protected class, rather because such practices could disproportionately impact individuals in protected classes.

In the ensuing years, the proliferation of new criminal laws and the resulting increase in prosecution and incarceration rates means that a growing portion of the workforce has some sort of criminal history.

Most employers have long recognized that not all criminal histories are the same and that giving those with criminal histories fair consideration is an important talent management strategy.

More recently, government officials at all levels have responded to calls from advocacy groups to encourage—or, in some cases, coerce—employers to consider and hire those with criminal histories. These “fair chance hiring” initiatives have often prescribed one-size-fits-all approaches that make hiring more challenging for employers while having few positive outcomes for former offenders.

Earlier this year, the Society for Human Resource Management (SHRM) partnered with a number of other organizations to promote employers’ fair consideration of those with criminal histories.

Still, many employers are uncertain about the practical and legal issues surrounding hiring those with criminal histories. For lack of effective tools, some are likely too conservative in their evaluations while others make the mistake of not being sufficiently cautious.

Most employers are second chance employers.

According to the Federal Bureau of Investigation, 73.5 million Americans have been arrested (not necessarily convicted) for a felony offense. That is roughly 30% of the US population and, if anything, seriously undercounts the number of individuals who have been arrested or cited for a criminal offense. (See the inset for more about these numbers.)

Advocacy organizations often make the false claim that employers refuse to consider any individual with a criminal record for employment.

In fact, in 2015 the National Employment Law Project published a paper titled 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment.

Let’s examine that claim.

In January 2019, the US unemployment rate was just 4%. If employers were truly excluding everyone with a criminal history from consideration, then the unemployment rate would be closer to 30%.

In fact, as a background screening firm, we help our clients knowingly hire individuals with criminal histories all the time. (The trick is, they’re making well-informed hiring decisions.)

The popular belief that employers are unwilling to consider applicants with a criminal history simply isn’t an accurate representation of most employers’ attitudes or policies—though many employers are uncertain about how to evaluate those applicants’ fit in their organization.

Considering individuals with criminal histories for employment is good business.

Most employers recognize that individuals with a criminal history are a valuable talent pool that they cannot ignore, and they understand that fairly considering the applicants who present minimal risk isn’t just good social policy, it’s good business policy.

Smart employers design systems to recruit, engage, and retain the best talent available without unnecessarily eliminating potential candidates.

Understanding the “Criminal History” Numbers

In common parlance, most of us consider a “criminal history” to be a circumstance where an individual was found responsible by a court for engaging in criminal behavior.

The FBI has said that 73.5 million Americans have a criminal history. Because the FBI’s data considers a felony arrest as “criminal history” even if there was no subsequent criminal case filed, this widely-quoted number is significantly higher than the number of individuals found responsible for a felony offense.

However, because the FBI focuses primarily on felony arrests, the more numerous misdemeanor arrests are significantly underrepresented in these numbers.

Additionally, once an arrest has been reported to the FBI, there is no mechanism to adjust the number when an arrested person dies.

According to a 2018 study, the various state criminal record systems have identity records for 110 million people. Again, these are primarily individuals charged with felony offenses. Some percentage of those individuals are deceased and there is certainly some duplication as individuals are often arrested in multiple states over their lifetimes.

When looking only at felony convictions, a 2017 University of Georgia study determined that 8% of the US population had a felony conviction and only 3% had served time in prison.

Focusing on convictions only may also be problematic. Most states offer defendants deferred adjudication or other sorts of probation to avoid a conviction appearing on their record. However, to participate in most of these programs, the defendant must enter a plea of guilt or no contest to the criminal charges against them.

So the exact number of  individuals with a “criminal history” is subject to debate.

Most employers do not have tools to objectively evaluate former offenders.

However, many do not have formal processes around how they deal with applicants with criminal histories.

When I speak to HR professionals at conferences about hiring individuals with criminal histories, they express anxiety as to whether they are making the best hiring decisions in this area.

Ignoring a criminal history may present undue risk to the organization, its employees and customers, or the public.  However, being too conservative when evaluating criminal history might also cause the organization to miss out on making a quality hire.

Most employers’ policies tell them to consider applicants’ criminal histories on a “case-by-case basis,” considering the following factors:

  • The nature of the offense (what was the underlying conduct?)
  • The age of the offense (how long ago did this occur?)
  • The nature of the job.

In fact, that is largely the guidance given by SHRM and the EEOC.

In their 2012 guidance on employers’ use of criminal history information, the EEOC added another component to these factors (commonly called the Green factors, based on the 1975 case Green v. Missouri Pacific).

According to the EEOC, employers should give applicants with a criminal history the opportunity to explain why the employers’ criminal history policy should not apply to their circumstance. This individualized assessment is the EEOC’s preferred approach to ensuring that each applicant is considered fairly.

The concern for savvy HR professionals is that this kind of consideration could be very subjective and different hiring managers might make very different calculations in identical circumstances.

Additionally, one firm’s business controls and culture may be very different from another’s, which may mean that an individual whose history suggests he may be medium risk in one organization could present a higher risk in another.

In my conference presentations on this topic, I’ve polled the audience on how they would evaluate the risk different criminal histories suggest for certain positions and the results are often all over the board.

And to evaluate an applicant’s criminal history, employers must first gather information about that criminal history—preferably directly from the applicant. (The background check should only be confirmation that the applicant told the employer the truth.)

But having these conversations with applicants makes many employers nervous because they aren’t certain what they can and cannot ask—and for good reason. Dozens of laws have popped up around the country at the state and municipal level governing what and when employers can ask about criminal history.

Some prefer to avoid asking applicants about their criminal history altogether, hoping that the background check identifies anything of concern. That is a sure way to expose your organization to undue risk, and to potentially miss out on the right candidate for the job.

The Second Chance Employer Toolkit

To ensure consistency, fairness, and risk mitigation, employers need policies and tools to guide their deliberations concerning employment of individuals with criminal histories.

Over the next six months, Imperative will share our insight and experience from two decades of consulting with employers about the legal and practical considerations when using criminal history in making hiring decisions.

We will conduct webinars, interview subject matter experts, share tools, and publish articles to give employers a toolkit to help them make fair, well-informed, and legal hiring decisions, regardless of industry or location.

The toolkit will cover:

  • How employers benefit from tapping into this source of human capital, including ways that HR leaders can introduce the concept to their executive peers.
  • Review of the social science surrounding recidivism and keys to successful reentry into society.
  • The legal issues affecting employers’ ability to fairly evaluate individuals with criminal histories against the rest of the available applicant pool.
  • The key components of successful employment relationships, mined from interviews with both employers and former offenders.

Our toolkit will also include seven free webinars, each approved for recertification credit from both HRCI and SHRM:

  • The Business Case for Becoming a Second Chance Employer
  • Seven Steps to Confident Hiring Decisions
  • How to Fairly and Legally Evaluate Applicants’ Criminal History Information
  • How to Legally and Meaningfully Discuss Criminal History with Applicants
  • Legal and Practical Background Check Considerations
  • Workplace Drug and Alcohol Testing and Policy Considerations
  • Why and How to Legally Monitor Employee Off-Duty Conduct

Registration for each webinar is limited, so register today.