By Stephanie Hammerwold
The key to success for many people leaving prison and jail is getting back to a normal life. A big piece of this is having reliable housing and the income to pay for it as well as other life expenses. The formerly incarcerated have served their time, yet many face challenges in securing employment because of their conviction history. The Ban-the-Box movement has been gaining momentum, and even President Barack Obama and several democratic presidential candidates have drawn attention to the need for employment support for the formerly incarcerated.
The U.S. has the largest prison population in the world, and it continues to grow. On the employment front, this means a large pool of job seekers facing the challenges of finding work with a criminal record. For employers and HR professionals, supporting the formerly incarcerated in securing gainful employment starts with not making criminal history an automatic barrier to employment.
The Problem with Using Criminal Background as a Job Qualification
When someone serves time for a crime, and then is released, we should be able to say they have paid their debt to society and can move on. Unfortunately, many of the formerly incarcerated face barriers to employment, public assistance, housing, support services and other things that can help them build a post-incarceration life. These barriers increase the risk of recidivism. Throwing up unnecessary barriers, in effect, continues to punish someone for a crime for which they already served their time.
On the employment front, the commonplace question on job applications that asks about prior convictions can keep someone from getting a job. I have worked with HR professionals and hiring managers who see a yes answer and automatically put an application in the reject pile. One person I worked with said that people should build up a stable work history post-incarceration and then come back to us for a job in the future when they have proven that they can hold a job. But if all employers take this approach, we are barring the formerly incarcerated from building a stable work history.
Because stability in things like employment and housing are among the keys to keeping people from returning to prison, it is imperative that we set up practices that remove some of the barriers to those things. When reviewing your application process, ask yourself if finding out about criminal history at the beginning of the process is relevant to the job. There are many jobs where it is not, and removing the question from your application can be a huge step in helping the formerly incarcerated secure employment.
Ban the Box & Criminal Background Checks
In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The guidance from the EEOC is not law, but it is used in investigating claims of discrimination that may arise relating to criminal conviction. Although there are still questions regarding how employers should proceed when considering criminal background checks, the EEOC’s guidance provides some insight into how use of criminal history in selection of candidates for a job may create barriers to employment, especially for groups of people who experience higher rates of incarceration.
One of the key items in the EEOC’s guidance is that employers who exclude candidates based on criminal history must show that, “such an exclusion is ‘job related and consistent with business necessity’ for the position in question.” Again, this comes down to determining if criminal background is necessary for a particular job. As someone who has done quite a bit of hiring in the course of my HR career, I can only point to a small handful of jobs that I could make a case for knowing someone’s criminal history. Even then, a conviction would not necessarily exclude someone. It would come down to the nature of the offense and how long ago it happened.
Removing the question about conviction from job applications is a good way to avoid the biases that may happen when an applicant responds yes. If a criminal background check is required for a job, consider holding off until later in the process and then giving a candidate a chance to explain their conviction before making a decision to hire or exclude them. In any event, avoid a blanket policy that covers all criminal convictions, and instead handle each applicant with a conviction on a case-by-case basis.
Some cities, counties and states already have laws in place regarding criminal background checks, so familiarize yourself with the requirements in your area. The National Employment Law Project has a useful publication that details specific requirements throughout the U.S.
Benefits of Hiring the Formerly Incarcerated
Removing barriers to employment for the formerly incarcerated benefits everyone. As a society, we should be focused on providing the tools, training and support services to keep people from doing things that land them in prison. And, for those who have been previously incarcerated, our focus should be on helping them to not go back. Doing so helps build a healthy society.
For employers and HR professionals, taking small steps to change the employment process can do wonders for helping the formerly incarcerated build a solid foundation where they have the means to support themselves, provide for their families and contribute to society in a meaningful way. Rather than continuing with a system where we are constantly forcing people to rehash bad choices in their past, we should instead focus on building a system where people are given a second chance to improve their lives.
Employers can also benefit from a federal tax credit for hiring those with significant barriers to employment, which includes ex-felons. Some states offer additional tax credits. The National HIRE Network has an excellent list of what different states offer. In addition, the Federal Bonding Program is an initiative of the U.S. Department of Labor and offers bonds that cover the first six months of employment for at-risk and hard-to-place job seekers.
Remember that it is important to carefully consider changes to your hiring practices when it comes to determining how you will use criminal background checks. Consult with an attorney if you have questions about your hiring practices and the use of background checks.
If you are formerly incarcerated and struggling with employment and figuring out how to answer application and interview questions, Kathleen Murray’s Out and Employed blog offers excellent advice, and you can also find some useful tips on the Denver Public Library’s website.