Advice for Employers and Recruiters

Beyond Ban the Box: Should TA leaders revise their criminal background policy to source new talent? 

Anna Peters AvatarAnna Peters
February 26, 2018

Recently, the New York Times reported on a changing landscape in the hiring space, in the article “As Labor Pool Shrinks, Prison Time Is Less of a Hiring Hurdle. According to the article, many employers are relaxing their criminal background policies to allow themselves to open a new talent pool: people with criminal backgrounds and even, in the case of municipal employer, current inmates.

While recent “Ban the Box” laws have played a part in this trend, there is much more to the story. We asked two experts at Verified First, a leading background and drug screening company, to weigh in about this trend. Michael Lotterstein is Vice President at Verified First, and Elyzabeth Ambra is Compliance Director.

Employers should consider revising policy beyond what ban the box laws sayBeyond “Ban the Box”

First and foremost, Lotterstein explains that “talent acquisition leaders should make sure they are following all Ban the Box laws. More than half of US states have implemented some form of this rule. If the laws affect your organization, “you do not want to ask the question, ‘Have you been convicted of a felony’ during the application process.” The idea is that candidates with a criminal record will be evaluated on their skills and experience, although employers can perform a background check after a conditional offer, and may be able to rescind the offer based on the results.

Even if there is no Ban the Box regulation in your city or state, Lotterstein suggests that employers consider adopt a similar policy for their hiring process. “It’s helpful to develop a hiring matrix and note what convictions would be okay for someone to work in departments looking for talent. For example, you may not want to hire someone convicted of a financial crime for your accounting department.”

While the intent of this legislation is to reduce discrimination, don’t fool yourself into thinking that your new policy will wipe away bias. Some opponents of the Ban the Box laws argue that when information about criminal background is hidden from employers, recruiters and hiring managers will just guess at whether candidates have a criminal background. This underlies the importance of having structured and a qualitative hiring and interview process, so your team doesn’t discriminate against candidates based on factors such as race.

Also read: How diversity activities can increase retention

Elyzabeth Ambra notices the whole hiring landscape changing for candidates with a criminal record. “More companies are willing to first consider if candidates have the skills to perform the job, rather than immediately focusing on their criminal history. If candidates have served their time and are sincere about turning their lives around, their criminal record shouldn’t be a hindrance on earning gainful employment.”

Advantages of hiring people with criminal backgrounds

The clearest advantage is opening up your talent pool in a tight labor market. Ambra says, “having a blanket policy of refusing to hire anyone with a criminal history means you’ll miss out on a lot of talent.”

There are other benefits to being a “second chance employer”, adds Lotterstein. “People who have paid their debt to society often leave prison with a new outlook on life. It’s much harder for candidates with a criminal history to find employment, so if they’re hired, they will typically stay employed for a longer period by your company.” Your organization might even see a difference in productivity. “These candidates are also motivated to be timelier and more productive so they can retain their jobs. Meaningful employment will lower the recidivism rate and help these candidates successfully reintegrate into society.”

Many employers may not see it as their responsibility to help individuals reintegrate into society, and may point to work-release programs that are designed to meet this very purpose. However, according to the New York Times article, “work-release programs have often been criticized for exploiting inmates by forcing them to work grueling jobs for pay that is often well below minimum wage.” While the work-release programs attempt to build inmates’ skills, an employer has the advantage of developing the exact skills they need.

Also read about white-collar apprenticeships in “Strategies to address the skills gap and plan your future workforce.”

Considerations before changing your criminal background policy

Individualize your hiring assessment to fit each roleEvaluate whether your criminal background policy is a broad hiring barrier, or whether it makes sense to have a more individualized approach. Ambra explains, “While it’s important to make safe hiring decisions, companies are best served through developing a criminal background policy that allows for individualized assessments of candidates.”

To assist in this, Ambra suggests that organizations make “individualized assessments of candidates using the EEOC ‘green factors.’ This includes key information such as the circumstances surrounding the offense or conduct, the number of offenses for which the individual was convicted, and the length and consistency of employment history before and after the offense. Through using these factors, employers can make fair hiring decisions and avoid dismissing a candidate for an offense that has no connection with their ability to perform the job.”

Role of prisons in preparing inmates for the workforce

With the change in legislation and tightening labor market, it’s worth asking whether prison facilities will end up playing a larger role in educating or preparing their populations for the workforce. If employers build a partnership with a nearby facility, they might find it completely void of competition for this talent pool, and malleable to fit their workforce needs.

Lotterstein also noted, “If more employers are willing to hire inmates and people with criminal backgrounds, there may be a shift in how prisons prepare inmates for the workforce. Prisons need to do their part to develop competent workers for society. If inmates can get education while incarcerated, both for certain workplace and social skills, this would give them a much better chance of obtaining employment.”

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