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Work and the Coronavirus

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Helping people understand how COVID-19 affects work and employment by sharing insights and help from ILR's workplace experts.

9 Myths About Hiring People with Criminal Records

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Timothy McNutt

This is a pivotal time in our nation’s history. The sustained protests of the past several weeks challenge all to confront injustice, bias, racism, and oppression that continue to exist in our society. In response, organizations have begun to reflect on what can be done to address the cultural and systemic forces that sustain racism within their own ranks. Employers understand that increasing equity requires more than talk of inclusion, but concerted efforts to address the underlying structural sources of inequality. To answer this call to action, organizations have pledged to improve their culture to ensure diversity and equal opportunity for all workers to advance their careers with the understanding that the fight against racism is one that must be fought continually and actively.

High unemployment and the struggle to make payroll due to the novel coronavirus exacerbate feelings of outrage and devastation caused by systemic injustices. Still, some are optimistic that hiring will continue in essential industries including major retailers, grocery chains, warehouses, and delivery organizations. Though the outbreak is impacting the way we work, it’s not impacting business needs. As a result, open positions still need to be filled to continue providing strong business outcomes and value.

To meet this challenge, employers often overlook an untapped talent pool of 75 million people with criminal records, a disproportionate number of whom are Black or Latino and have been negatively impacted by mass incarceration. Many of these workers are looking to put their skills to work, find a job, and earn an income to support themselves and their families. It would be a mistake to overlook this population during the pandemic, especially with increased competition for jobs and a renewed sense of equity that is being advocated across the globe.

In order for companies to open doors and eliminate barriers to success for people who have been involved in the criminal legal system, it’s important to address nine myths about hiring people with criminal records during the COVID-19 crisis.

Myth 1: My Organization Has a Fair Hiring Practice.

FACT: Prior research suggests that employers discriminate against those with criminal records, even if they claim not to.

Although employers express willingness to hire people with criminal records, evidence shows that having a record reduces employer callback rates by 50%.

In order to implement fair hiring best practices, companies should remove questions regarding criminal convictions from job applications. Delay asking about applicant’s criminal history until conditional offer of employment (NYC Ban the Box Law). Get written permission from the applicant to run a background check. Apply the 8-factor New York Correction Law Article 23-A test and remember job-relatedness. Train anyone who hires on laws and Article 23-A. Provide anti-discrimination and implicit bias training to anyone with hiring responsibility to ensure fair screening of applicants. Set clear objectives for recruitment efforts. Consider conducting regular audits to determine whether criminal record screening policies are having an adverse impact on Black and Latino job applicants. Standardize hiring selection procedures for those responsible for hiring.

Myth 2: Hiring People with Criminal Records Increases Risk.

FACT: No studies support the idea that formerly incarcerated individuals pose a greater security risk.

Further, organizations in New York are protected from negligent hiring lawsuits. Insurers who write commercial crime insurance policies must provide coverage to an employer who has weighed the factors set out in NYCorrection Law Article 23-A and made a determination to hire the justice-impacted applicant (NYS Insurance Regulation 209 of 2017). There is a presumption of due diligence if the employer uses the 23-A analysis. Also, bonding ensures businesses can be insured for free by the federal government for up to $25,000 for any loss of money or property when hiring someone with a criminal record.

Myth 3: People with Criminal Records Are Less Reliable and Will Contribute to Increased Turnover.

FACT: Employees with criminal records tend to stay on the job and remain loyal to employers who hire them.

In two recent studies, human resources managers found that annual turnover was on average 12.2 percent lower for employees with criminal records and by adopting a program to recruit employees with criminal histories it reduced turnover from 25 percent to 11 percent.

Myth 4: Hiring People with Criminal Records Will Increase My Expenses.

FACT: Recent research has found that employees with records remain on the job at higher rates than those without criminal histories.

For example, better retention can reduce an employer’s recruitment and training costs for lower-skilled white-collar workers, which analysts estimate are close to $4,000 per employee. Some governmental bodies offer insurance and tax incentives for employers who hire people with criminal records, protecting against real or perceived risks of loss. In New York, the Work Opportunity Tax Credit enables businesses to earn $1,200 - $9,600 in federal tax credits for hiring people with criminal records.

Myth 5: Hiring People with Criminal Records Will Result in Underperformance.

FACT: The justice-impacted often outperform workers without criminal records.

For people with criminal records, rejection –and fear of rejection – are common experiences. They have been told “no” before – by banks, by potential employers, by colleges and universities. Along the way, many have cultivated resilience, a wellspring of hope, faith, and determination that propels them forward despite the obstacles in their path. Individuals with criminal records are more motivated to perform at work because they have fewer employment options. According to a survey of 1,000 people (including managers), 80% indicated that they valued workers with criminal records as much or more than employees who did not have convictions. According to a 2015 study by Portland State University that compared employees at Dave’s Killer Bread over a three-year-period, people with criminal backgrounds outperformed those without in three categories: attendance, policy, and behavioral violations. Additionally, employees with a background were promoted faster.

Myth 6: Hiring People with Criminal Records Will Create Problems on the Job.

FACT: No studies support the idea that formerly incarcerated individuals are poor workers or pose a greater security risk.

In a compelling case study, Jennifer Lundquist, Devah Pager, and Eiko Strader found that in the military, workers with felony-level criminal records are no more likely to be fired for the negative reasons employers assume (such as misconduct or poor work performance) than those with no criminal record. Johns Hopkins conducted a study of 79 employees with more serious records for 3-6 years after their hiring date. At the end of the study period 73 individuals were still employed and only one was fired.

Myth 7: There Is a Skills Gap Between People with Criminal Records and Those Without.

FACT: Some prisons and reentry/diversion programs offer job training to increase employment opportunities for individuals with criminal records.

Partnering with workforce development programs help businesses ensure that workers get the help they need, such as: transportation to work at no cost to the employer; workplace skills including interpersonal communication, organizational skills, and leadership training; high school equivalency courses; case management for employees with criminal histories; and advice for employers on how to apply for tax credits and subsidies. See The Second Chance Ecosystem. On this map you’ll find a series of outstanding Second Chance Employment recruiting partners (blue pins) and wrap-around service providers that offer valuable support for your employees (green pins).

Myth 8: Background Checks Are Reliable.

FACT: One in two FBI RAP Sheets are flawed (National Employment Law Project).

Approximately 30% or 2.1 million NYS RAP Sheets have errors (Legal Action Center). Professional background screening companies routinely make mistakes with grave consequences for job seekers (National Consumer Law Center). To ensure best practices for background screening, use a company certified by the Professional Background Screening Association. For more information see: https://thepbsa.org/

Myth 9: People with Criminal Records Are Likely to Commit Crime Again.

FACT: People change. Research has shown people with criminal records who are employed are less likely to commit a crime again.

Employers who avoid applicants with criminal records overestimate the link between criminal histories and workplace productivity or the propensity to reoffend.

Broad stereotypes about people with criminal records have no real-world basis.

The events of the past two weeks have caused organizations to reflect on what actions they can take, on their own and in partnership with others, to advance a more just and inclusive workplace by expanding individuals’ opportunities to connect to quality work and build the economic stability necessary to pursue opportunity. As states begin reopening businesses with social distancing measures in place, it’s imperative that we embrace this crisis as an opportunity to improve economic opportunity for formerly incarcerated people who need stable jobs for the same reasons as everyone else: to support themselves and their loved ones, pursue life goals, and strengthen their communities.

To combat injustice and build a more equitable and inclusive workplace during the COVID-19 pandemic, the Criminal Justice and Employment Initiative at Cornell ILR continues to look for ways to improve employment opportunities for people with criminal records by designing and delivering legal employment training to close information gaps, implement best practices and integrate job seekers with criminal records into the workforce. We are committed to empowering all stakeholders with the tools and strategies to dismantle the structures and obstacles to achieving justice, equity, and inclusion. We educate justice-impacted individuals, unions, employers, government agencies, and advocates to use the rule of law to grasp these promises and effect real change in a time of great uncertainty.

We also recognize the responsibility that institutions like ours must take to live up to our commitment to racial equity, including ongoing reflection and education. But we know we can do much more, and we welcome your input on how we can be a stronger partner, advocate, and ally in the fight for racial and economic justice. Please contact Timothy McNutt, Esq. (tm628@cornell.edu), Director, Criminal Justice and Employment Initiative.

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