President Obama's recent remarks suggest he's poised to reform the criminal justice system in a major way and when he does, he may look to you for help in a very specific way.

Would you consider interviewing job candidates before knowing if they have a criminal record? 

It's not as radical an idea as it sounds.

In fact, many companies already do this. Walmart, Target, Home Depot, Koch Industries, and others have already adopted so-called fair-chance hiring policies for people with records, which are designed to give these candidates a better shot at getting an interview by removing the requirement to disclose a record upfront. It's commonly referred to as "banning the box"--meaning the standard check box on job applications that asks if you've ever been convicted of committed a crime.

More than 200 national, state, and local organizations, including the ACLU, the AFL-CIO, and the National Employment Law Project (NELP), have endorsed these policies. And while some small-business owners are worried about the extra burden they might impose, others argue that such policies would have long-lasting benefits on the economy, their own businesses, and the lives of their employees.

On Thursday, July 30, fair-chance hiring advocates will take their case directly to Washington in a demonstration in front of the White House. They're asking Obama to take action on recent comments he made in a speech to the NAACP and during a visit to a federal prison in Oklahoma.

"Let's follow the growing number of our states and cities and private companies who have decided to 'Ban the Box' on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview," he told the NAACP.

NELP and other organizations want the president to issue an executive order requiring federal agencies and contractors to delay asking applicants about their prior convictions until these candidates are closer to receiving a job offer.

"The reason for focusing on the federal government's hiring practices is that if we want private employers to get on board with this culture change for how people with records are considered and we want to reduce that stigma, we need to see leadership at the federal level," says Michelle Navidad Rodriguez, a senior staff attorney at NELP.

Becoming a 'model' employer.

Between 70 million and 100 million Americans--as many as one in three--have some kind of a criminal record, regardless of whether they were simply arrested and then released or served time for a serious crime. When these people apply for jobs even years after the fact, those records pop up in background checks, often branding them as unsuitable for good jobs before they have a chance to prove otherwise.

Social justice groups have tried for years to shine a spotlight on the fact that people with records face serious obstacles to stable employment. It looks like they finally have a supporter in high places who might be able to do something about it.

In recent weeks, President Obama has put a new focus on problems in America's criminal justice system. He became the first sitting president to visit a federal prison and he's stated that he intends to use the remainder of his term addressing problems such as excessively long prison sentences for nonviolent drug offenders, the disproportionate number of blacks and minorities locked up, and the difficulty formerly incarcerated people face when trying to reintegrate into the legal economy. 

His "ban the box" remark at the NAACP comes at a time when the issue has already gained significant momentum. Eighteen states and more than 100 cities and counties have adopted some form of fair-chance hiring legislation. Twenty-seven U.S. senators and more than 70 members of the U.S. House of Representatives have written Obama urging him to use his executive power on the issue to ban the box on federal agency and contractor applications. 

What fair-chance hiring really means.

For employers, it's important to know how fair-chance hiring rules might--and might not--change the hiring process. To be sure, if Obama were to issue an executive order affecting federal contractors, it's not clear exactly what that order would stipulate.

But in broad strokes, it might look similar to some of the existing state and local laws. Typically these laws prohibit employers from including a criminal record question on initial job applications. Employers can ask about records later in the process, usually after the first interview and before they make a job offer.

Companies can also conduct background checks later in the process but may not overlook a candidate simply because of his or her criminal record. If they do decide not to hire a qualified person with a record, companies must explain why. More expansive laws also ask employers to take into account the type of crime committed and whether it's relevant to the job, as well as how much time has passed since it happened. And there are exemptions for certain positions that, say, put the employee in contact with children or with sensitive information.

Creating a culture change.

Critics of fair-chance hiring laws, most notably the conservative interest group National Federation of Independent Businesses, have called the requirement to delay background checks "onerous" on small businesses with small staffs. In articles on NFIB's website, the organization quotes several business owners afraid of what potential legislation might mean for their companies.

"I should not have to go blind into that hiring position," Randy Bradley, an Iowa-based fast food franchise owner tells NFIB. "There are real strong concerns here ... if the government prevents me from finding out about my potential employees." 

To be clear, existing ban-the-box legislation doesn't prevent employers from finding out about criminal records; it just requires companies to wait to pull a background check and ask about records until they've considered the merits of an applicant first. Could this potentially lengthen the hiring process? Maybe.

For businesses that are already in the practice of hiring formerly incarcerated people, the benefits of delaying this conversation outweigh the drawbacks.

Kabira Stokes founded Los Angeles-based Isidore Electronics Recycling on the idea that it gives value to two things society normally discards: old electronics and people with criminal records. The company works with local reintegration organizations to hire qualified people with records to drive its trucks and dismantle equipment to be recycled, reused, or resold.

"As a for-profit, this has been a huge differentiator for us, both in terms of customer acquisition and employee loyalty," Stokes says. "There is an amazing sense of dedication to this place because people love having this mission they can get behind." 

Stokes is the first to admit that the fears employers have must be acknowledged. "This is tough stuff," she says, and occasionally people do fall off the wagon. "But anyone in any company can fall off the wagon too." Stokes says she has gotten smarter about her hiring practices over the years. She won't hire anyone directly out of prison (they need to get training and support first) and she won't take anyone who's committed theft or identity fraud, given that the company deals with computers that might hold sensitive data. 

The city of Los Angeles is so impressed with Isidore's model that it's studying how it might be replicated elsewhere in the city. And the company recently landed a big new client: the U.S. Department of Justice.

Stokes is encouraged by the momentum she sees around the issue of federal fair-chance hiring rules and its potential to help change the hearts and minds of other employers. 

"We have this deeply blind trust in the criminal justice system, but we don't have any faith in the system--we don't trust that people can be rehabilitated," she says.

Published on: Jul 29, 2015