How Your Business Can Give Applicants With Criminal Records a Fair Chance

Around a third of U.S. adults have criminal records. Make sure you’re not excluding them as potential employees.
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Written by Rosalie Murphy
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Approximately 77 million U.S. adults — more than 1 in 3 — had a criminal record as of 2020, according to the most recent data from the National Conference of State Legislatures, a bipartisan trade association for lawmakers and legislative staff. 

That can make it difficult for these individuals to land jobs, even amid worker shortages. 

“What's happening here is that the record itself makes employers unwilling to hire, regardless of the conduct associated with the conviction,” says Han Lu, a senior staff attorney at the National Employment Law Project

The result is business owners potentially weeding out qualified applicants, even without meaning to, because of their criminal records.

Here’s what you can do to make sure you’re giving those candidates a fair chance. 

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Make your stance clear in job postings 

Fifteen states and 22 cities and counties have passed “ban the box” legislation that extends to private employers, according to the National Employment Law Project. And 37 states have banned the box for public-sector jobs.

“Ban the box” prohibits employers from asking about convictions or arrests on job applications. 

Lu recommends removing that question from your applications — even if you’re not required to.

“[The box's] mere appearance is seen as a sign by an applicant with a record that they won't get the job,” Lu says, adding that it may keep otherwise qualified candidates from applying. 

Beyond that, add language to your job postings that clearly invites applications from people with records. Lu’s examples: “We value diverse experiences, including prior contact with the criminal legal system” and “People with records are encouraged to apply.”

“These sorts of things might feel superficial, but they really matter,” Lu says.

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Rethink background checks

Save background checks until after you’ve extended an offer, Lu recommends. And if the background check turns up a criminal record, share a copy with the candidate and go over the results.

Approach background checks with nuance. An arrest, for instance, may show up on a background check — even if the person was never convicted of or even charged with a crime. According to a 2022 study in the academic journal Science Advances, nearly half of Black men are arrested at least once before age 36. And more than half of men who’ve experienced a period of unemployment have a criminal record.

“How many Black men over the last 50 years have been stopped and documented in the system when they actually didn't even get convicted of anything?” says Harley Blakeman, the founder of Honest Jobs, a job-seeking platform for people with criminal records. “It's extremely unfair, biased, to say, ‘well, they had an arrest on the record.’”

It’s OK if your company’s response to background checks varies, depending on what role you’re hiring for, Blakeman says. For instance, you might not feel comfortable hiring someone with an identity theft conviction for a role that deals with customers’ personal information. But if your team liked that candidate enough to extend an offer, perhaps they would be a fit for another opening. 

Blakeman also recommends making background checks the responsibility of one person in human resources to reduce the impact of any particular manager’s bias.

Understand the business value

Giving people with criminal records a fair chance might help you find more job candidates in a historically tight labor market, Blakeman says.

“We’re not in an employers’ market anymore. We're in a market where job seekers are being picky,” Blakeman says. “And that requires a different strategy.”

Making that shift doesn’t mean compromising, though. In fact, more than 80% of business leaders said they thought workers with criminal records were just as good at their jobs as workers without them — if not better — according to a 2021 survey from the Society for Human Resource Management. 

“This is good for people, good for community and good for organizations and employers,” says Wendi Safstrom, president of the SHRM Foundation, which started an initiative encouraging employers to hire people with records in 2019. 

Another benefit: If you hire someone who has been convicted of a felony or released from prison within the last year, you may be eligible to claim the Work Opportunity Tax Credit. This can be worth up to $2,400, according to the IRS.

On top of this, state employment departments administer the Federal Bonding Program, which provides free fidelity bonds that protect businesses from theft or fraud by an employee with a record. 

Be prepared for internal change, too

If you hire people returning from incarceration or with felony convictions, note that they may need to meet with parole officers or attend court-ordered recovery support meetings. Employees may need flexible schedules or time off to keep those commitments.

Safstrom recommends connecting with a community-based organization that works with formerly incarcerated individuals. This can help your entire company build an understanding of what employees with records need.

And by hiring and retaining people with records, your company is “demonstrating a commitment to justice and fairness,” Lu says. 

“[It’s] a fighting chance for these workers to build some kind of stability,” Lu says, “like economic stability, and stability to plan for the future for themselves.”