3 Steps Beyond "Banning the Box" - Hiring Formerly Incarcerated Individuals

April 16, 2015 7:39 AM Comment(s) By Gabriel

Although it's probably not intentional, too many advocates seeking to help formerly incarcerated "returning citizens" find work seem to be telling business owners and managers that we're part of the problem.  Here are three policy suggestions that will help business owners become part of the solution.Just over four years ago, I founded Wash Cycle Laundry, a social enterprise, to prove that entry level jobs could be launching pads into upwardly-mobile careers, even for adults who face significant barriers to re-entering the workforce.  Today, about half of our approximately 50 employees are formerly homeless, formerly incarcerated, in recovery from substance abuse, or are former TANF (welfare) recipients. In short, finding ways to give second chances to job-seekers that have few opportunities is something that Wash Cycle Laundry's manager's dedicate themselves to every day. Recidivism is a huge problem in our country --  a recently-released Department of Justice study found that two-thirds of released prisoners were re-arrested for a new crime within three years, and three-quarters were re-arrested in five years. The causes are complex and having a job is not a panacea, but for most people leaving prison, finding a job is a a necessary-but-insufficient condition for staying out. Unfortunately, for those who have criminal records, finding a job is much easier said than done.  As a proposed solution to that problem,  "Ban the Box" legislation has "gone viral", being passed in 13 states and over 60 cities or counties, including Philadelphia.  "Ban the Box" policies typically prohibit employers from asking about a job applicant's criminal history until after the first interview is completed.  On their face, most of these policies are reasonable, and align with smart hiring practices anyway -- Wash Cycle Laundry's practice is typically to run background checks after a phone screen and two face-to-face interviews, but prior to making a job offer. However, it's worth taking a look around the messaging around these campaigns to understand how advocates are alienating employers.  The title of the national campaign's website,  bantheboxcampaign.org, is "End Discrimination at Your Workplace: Ban the Box," which then encourages people to sign the "Fair Chance Pledge."  The implication isn't that subtle: the message is that employers who ask about criminal convictions are unfair and discriminatory.  If we could only use policy to prohibit employers' knee-jerk reactions against hiring people with criminal convictions, then perhaps people with records would have a "fair" shot at employment.   The problem with this logic is that there are legitimate, bona-fide reasons for employers to deny employment to job seekers with certain types of criminal convictions for certain jobs.  As employers, we have a solemn commitment to keep our customers and employees safe, and a legitimate exposure to "negligent hiring" lawsuits if an employee harms somebody in connection to his/her job in a way that we knew or  should have known might happen based on their criminal record. Most of the examples that get brought up to explain what "negligent hiring" means in theory are woefully inadequate to explain how difficult is to steer clear of "negligent hiring" in practice.   Of course a hotel shouldn't hire a serial rapist to be a housekeeper, and a stock brokerage shouldn't hire a chronic embezzler to be its accountant.  At the same time, just about everybody agrees that the non-violent offender with a single conviction from six years ago deserves a second chance at just about whatever he/she wants. But in practice, most people who apply for jobs at Wash Cycle Laundry (even those with felonies) are not serial rapists or chronic embezzlers.  The applicants we interview at Wash Cycle Laundry have much less clear cut, much more human histories.  To be clear, all the following examples are made up.  But is there "foreseeable harm" if I hire somebody to fold laundry if he/she has a two-year old firearms conviction but no other violent crimes?  What if he/she also has two assault convictions, but the convictions are five years old?  If somebody was convicted with a half-dozen prostitution-related crimes, including trespassing, how many years (if any) need to pass before I can send him/her to a customer's doorstep to pick up laundry (if it would ever be okay to do so)?  What about hiring that same applicant as a salesperson who visits places of business but not homes?  What if eight of the forty places of business he/she might visit are day care centers or geriatric nursing facilities? There is always another layer to peel on this particular onion.   These aren't just questions that Wash Cycle Laundry's managers have to grapple with ourselves and come to our own consensus.  We also have to be pretty darn sure that all our customers and other employees would agree with our assessment, because there are no specific guidelines or safe harbors about what level of risk is acceptable, and if we make the wrong call, we could end up in court. And even if we ultimately "win" the case because our process and judgment was sound, going through any sort of serious litigation is the kiss of death for small, growing companies like ours. In practice, what this means is that just about all of the people we hire with criminal backgrounds work in our laundry facilities, without direct customer contact. As of today, none of our delivery team members have been incarcerated according to our background checks, and historically, we've only ever hired a handful with minor offenses.  Even with this arrangement, we've had brokers tell us that we are not a good risk to market to insurance carriers. Opening employment opportunities to people with criminal convictions is a huge social problem, but the current system asks employers to bear all the risk and offers very little in return.  If, as an employer, you go too far in offering "second chances," it's statistically likely that everything will be fine -- except in the offhand chance that it isn't, in which case you've placed your customers in harm's way and your business and livelihood on the line.  And by the way, there are no clear guidelines about what "too far" means in practice. Current policy leaves it up to employers to figure that out and hope their version isn't tested by litigation. So let's go ahead and "Ban the Box." It's not a bad first step, lthough while we're getting those ordinances passed, it's probably a good idea to drop the not-so-subtle implication that employers are being "discriminatory" -- undoubtedly, some are, but advocates will turn away many of the ones that aren't by painting with that broad a brush. And once we've done that, here are some suggestions of next steps that I think will go a lot farther in opening employment prospects for people with criminal records:
  1. Expand the Federal Bonding Program that offers employers insurance against acts of dishonesty by employees with criminal histories.  Right now, the Federal government offers fidelity bonds for up to $25,000 of coverage for the first six months of a "high risk" employee's tenure.  That's great if you're worried about employees taking money from your cash register or stealing flat screen TVs from your storeroom, but it's nothing if you become the subject of litigation.  It would be costly to raise coverage to six- or seven-figures, but probably not nearly as costly as re-incarcerating a repeat offender.
  2. Define larger "safe harbors" for employers who hire people with certain types, frequencies, and ages of criminal convictions.  Right now, employers aren't allowed to consider criminal convictions older than 7 years, and have some protection for deciding to hire people with only a single conviction.  Policy makers should consider expanding, clarifying, and fortifying many of these "safe harbors" to allow more employers to presume that hiring more types of job applicants is "safe."
  3. At a minimum, offer customized, pro bono legal advice to employers considering a particular applicant for a particular position. Employers who are considering hiring an applicant with a criminal record should have the ability to talk to employment attorneys who can help that employer assess their risk exposure from making certain specific hiring decisions.  General guidance brochures and group workshops are not enough.  Since the law states that employers must assess each applicant on a case-by-case basis, employers need case-by-case legal advice.
    In 2013, Gabriel Mandujano was appointed by Mayor Michael A. Nutter to the board of Philadelphia Works, the agency that administers $50 million of State and Federal WIA and TANF funding on behalf of the City of Philadelphia.Learn more about our social impact    
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