Many employers have hopped on the ban-the-box bandwagon in recent years, whether to comply with laws, stay ahead of the Equal Employment Opportunity Commission or simply to express an open-minded hiring philosophy. It’s not the same thing, however, as taking active steps to hire more people with felony convictions.
A Google search for “felon-friendly employers” yields an abundance of job-listing sites that are identified as being hospitable toward convicted felons. The employers listed on these sites do not always promote themselves in those terms, however.
Proponents of affirmative action for felons recognize that the social benefits of employing people with criminal convictions, such as lowering recidivism and crime rates, do not amount to a business case. Instead, they point to metrics such lower turnover rates.
For example, at Total Wine and More, a 5,000-employee national beverage chain, job turnover for several job categories was significantly lower for employees with a criminal record than those without, according to the company. For cashiers, the rate was 14 percent lower.
In analyzing its data, the retailer determined that the lower turnover rates applied to all categories of crimes — “not only for individuals with low-level drug or alcohol-related convictions, but also for individuals with more serious convictions.”
Further, the self-described “key finding” in a study of customer-service employees by a trio of Northwestern University professors found that “employees with a criminal record perform as well or better than those without a record in some jobs.” (The research, titled Criminal Background and Job Performance, was posted on the SSRN.com website in May.)
The researchers at Northwestern University say more research is needed before definitive conclusions can be drawn, but many of the employers that have already moved towards a comprehensive felon-friendly strategy contend the benefits of this practice may far outweigh any risks associated with it.
Given the prevalence of Americans with criminal records, it isn’t hard to find them in the labor pool. Consider that the Brennan Center for Justice estimates that 70 million Americans have a criminal record, including 20 million with felony convictions. Or, as the Bureau of Justice Statistics reports, 95 percent of prisoners in state prisons will be released at some point.
While it’s impossible to gauge their degree of “felon-friendliness,” the number of employers that have signed the Fair Chance Business Pledge exceeds 300, including many of the nation’s largest employers. (Collectively, these organizations employ more than 5 million workers.)
That pledge, part of a 2016 Obama Administration initiative, includes the following statement: “We are committed to providing individuals with criminal records . . . a fair chance to participate in the American economy.”
The roster of signatories includes companies such as Ben & Jerry’s, Monsanto and Koch Industries.
Ben & Jerry’s, a subsidiary of U.K.-headquartered Unilever, explained its hiring philosophy in a message to its employees and customers last year, stating that an undue focus on criminal convictions reinforces “systemic racial and economic injustices,” and “stands in the way of our aspiration to build a diverse, inclusive and high-performing team.”
The Quest to Innovate
Similarly, Monsanto, another “fair chance business pledge” signatory, says its approach (including a ban-the-box policy) reflects its commitment to building and maintaining a diverse culture. A key business payoff of that philosophy, says Sue Allen, the company’s global talent and HR leader for North America, is faster development of “innovative products for our customers.”
That’s not just a theory, says Allen, adding the company has conducted internal studies that found leaders who are inclusive “in thought, processes and behaviors” are top performers.
Any potential challenges associated with intentionally considering job applicants with criminal records “must be considered against the value they will bring to the company,” she says.
Allen’s comment reflects the fact that St. Louis-based Monsanto, like most employers, doesn’t ignore criminal records when screening job applicants. It’s more about the degree of individualized analysis accorded to applicants with felony convictions that the EEOC called for in its 2012 “enforcement guidance on the consideration of arrest and conviction records in employment decisions.”
Banning the box generally means not determining whether a job applicant has a felony conviction until after the first round of elimination. At Koch Industries, all job candidate finalists are subject to a background check, says Mark Holden, general counsel of the 120,000-employee Wichita, Kan.-based global industrial giant. “But it’s just one data point.”
When applicants know that a background check will be performed, they typically will bring the subject up during the interview, says Holden. “They know it’s important to get that on the table.”
Koch’s perspective, reflected not only in its hiring practices but in its philanthropic initiatives, is that the U.S. criminal justice system is fraught with abusive practices that “ensnare a lot of people,” Holden says.
For example, Holden says, state laws often set low thresholds for the quantity of an illegal drug that automatically deems the drug’s owner as a dealer, without requiring the prosecutor to prove that to be the case. The result is an automatic felony conviction, he adds.
While felony drug convictions are the most typical crimes that turn up in criminal background checks, other, potentially more problematic felonies are revealed as well.
But even an aggravated assault conviction would not necessarily be a disqualifier for hiring, says Holden. While keeping Koch employees safe is at the top of the priority list, the company also looks into the details of an assault conviction. “Was it a bar fight? Or did the guy pound his boss into a coma?” he asks rhetorically.
Hungry to Perform
Perhaps the ultimate expression of felon-friendly status is reflected in the hiring practices of Greyston, a “social enterprise” bakery in Yonkers, N.Y. The company is small, with only about 100 employees. But its “open-hiring” model can work for larger employers as well, contends Mark Brady, the company’s CEO.
Greyston, whose principal product is brownies, is launching an entity it calls the “Center for Open Hiring” in 2018 to educate and provide resources for other employers interested in following its example.
Roshi Bernie Glassman, a Zen master with a Ph.D. in applied mathematics, founded Greyston in 1982 with the dual goal of running a viable business and aiding the local community. The Buddhist principle of “non-judgment” is at the heart of Greyston’s open-hiring approach.
The system is simple: Prospective employees put their name on a waiting list, and when a job opening occurs, whoever is at the top of the list is hired, no questions asked — except when completing an I-9 form.
While this approach might not fit the needs of most traditional employers, the results could still hold lessons for prospective felony-friendly companies. Although the open-hiring model is not specifically targeted at felons, over time, many inevitably join Greyston’s ranks. The fact that no questions are asked when new hires are engaged means that the company doesn’t have data on the number of its employees with criminal histories.
Although new hires for bakery production positions are required to undergo a 10-month apprenticeship program, Greyston’s open-hiring model keeps hiring costs low. “Our recruiting costs are zero,” Brady says.
To maintain such cost savings over a long period of time, employees who don’t demonstrate good work habits during the internship phase are promptly dismissed. Most new hires, however, do make it through the program, with the number of employees not completing the apprenticeship in the single-digit range.
Meeting Employee Needs
A critical component of Greyston’s hiring and employment model is placing a high priority on helping employees address child care, housing, transportation, substance abuse and mental health issues. But rather than taking on that support role itself, Greyston has linked up with a local nonprofit organization to work with employees and connect them with suitable resources.
Brady, a business-strategy consultant prior to joining Greyston, understands that its customers won’t support the company merely on the basis of its hiring and employment practices. “We need to make great products at a great price,” he says. Still, he adds, Greyston’s “social justice strategy is a great differentiator” — and played a role in attracting its largest customer, Ben & Jerry’s.
Building and sustaining a felon-friendly (or at least felon-neutral) workforce posture in larger and more complex organizations involves several steps. The most basic is establishing a formal policy and procedures.
While it might not be practical or legally prudent to try to enumerate detailed criteria for hiring felons, it is a good idea to have a formal assessment process in place, notes Andria Ryan, a partner in the Atlanta office of Fisher Phillips.
Ryan suggests that employers might want to set up a committee with HR, recruiting, a loss prevention and security specialist, as well as someone with a feel for the dangers of a particular job, to provide more insight on a possible hiring decision. Legal counsel often will be part of the mix, she adds.
The critical questions to answer are the relevance of the felony to the applicant’s suitability for the specific job opening, and any possible broader risks to the company, its employees and customers.
Hiring managers need to gain a comfort level with asking prospective employees direct and specific questions about their felony convictions — including the circumstances, subsequent efforts put forth to make amends and how the individual thinks about the crime today.
While posing such questions might be awkward for the employer, chances are the felon will be more comfortable, typically having been through the process multiple times already.
This careful and individualized process not only helps to assess a candidate’s suitability for the job, but serves two defensive purposes. First, it helps to rebut an employment discrimination charge of blanket rejection of felons. Second, if it is buttressed by a thorough background check, it can also beat back a negligent hiring suit, should the employee harm anyone at the workplace.
Once a felon has been hired, experts say HR needs be especially careful not to view the employee though the lens of a felony conviction, thereby detracting from a more holistic view of the individual. They also add that they need to realize that, depending on such factors as the nature of the employee’s felony, duration of prison time and subsequent work history, a little extra support and guidance could help ensure that a newly hired felon is successful in their job.
“Make sure you’re supporting the person, possibly with a mentoring program, as many employers do with veterans and persons with disabilities,” advises Mike Aitken, vice president for government relations at the Society for Human Resource Management in Alexandria, Va.
Meanwhile, the same Northwestern University study that hints at possible superior job performance by felons drew another tentative conclusion that sheds further light on the practice of hiring felons.
The researchers found that, for certain kinds of jobs, such as sales positions, standard psychometric testing methods that are commonly used for hiring might be a better predictor of employee performance than criminal records. “In theory,” they wrote, such testing of employees in certain job categories “might provide a mechanism to allow employers to ignore criminal records entirely by testing directly for the characteristics that cause difficulties in a subset of employees with criminal records.”
As Holden puts it, “Whoever you hire, you’re going to make a bet on them.”