Putting Humanity into HR Compliance: Try Second-Chance Employment

Jathan Janove, J.D. By Jathan Janove, J.D. February 11, 2019

​As a management-side employment lawyer, I observed firsthand the obstacles faced by job applicants with criminal pasts. Whether or not employers ask applicants to "check the box" on application forms to indicate they have a criminal history, a great many employers conduct criminal-background checks. In the era of online searches, available information about an applicant's criminal history goes well beyond felony convictions.

When information surfaces that an applicant has a criminal past—regardless of how much time has elapsed since the crime, the nature of the offense or other circumstances—employers and HR professionals tend to reject the applicant. Why? Because the employer and HR professional may be held liable if that new employee subsequently causes trouble.

This risk aversion is understandable but regrettable. Employees with criminal pasts are no more likely to misbehave, perform poorly or create a liability risk than other workers. And in a tight labor market, employers can't afford to automatically eliminate from consideration the nearly 700,000 men and women who are released from prison each year.

SHRM has partnered with many companies and other associations to launch the Getting Talent Back to Work initiative, pledge and toolkit. I strongly encourage you to visit the website and take the pledge to give applicants with criminal histories a second chance.

Don't Jump to Conclusions

In my more than 25 years of practicing employment law, I dealt daily with problematic employees. The tools of my trade were designed to prevent or resolve harassment, crime, poor performance, toxic attitudes and various other forms of workplace misconduct. Of the numerous bad actors I encountered, not a single one had a criminal record.

"For years, we management attorneys have been counseling clients not to hire second-chance applicants. We owe these applicants an apology," said Corbett Gordon, who has been practicing law for 35 years.

If an employer conducts a criminal-background check and "discovers information about the criminal past of an otherwise well-qualified candidate, it should closely scrutinize this information's relevance, if any, based on factors such as nature of offense, time elapsed and type of job in question," said Chai Feldblum, former commissioner of the U.S. Equal Employment Opportunity Commission. "The presumption should be to hire the applicant, not the other way around."

Find Help to Get Started

In addition to overcoming risk aversion, HR professionals can make an important contribution to both their employers and society by taking affirmative action to hire people with criminal records.

Dave Dahl is the "Dave" of Dave's Killer Bread, the top-selling organic bread in the U.S. He spent 15 years in prison before getting his second chance.

"We found it advantageous to hire people with a criminal past, resulting in a third of our workforce having such backgrounds.

"We didn't do this simply as do-gooders. Overwhelmingly, these applicants turned out to be excellent employees—hardworking, dependable, cooperative and so forth. As an ex-con myself, I can tell you that once you decide to leave that past behind, if given a chance, you'll do everything in your power to perform well.

"As a result, we were able to hire highly motivated and eager people with talents and energy that had been passed over by other employers. Essentially, we got the cream of the crop."

Employers can take steps to hire the formerly incarcerated by collaborating with organizations such as Dave's Killer Bread Foundation, Hickman's Family Farms and Constructing Hope.

Colleen McManus, SHRM-SCP, is chief human resources officer for the state of Arizona. The Arizona Department of Corrections places offenders with Hickman's Family Farms, based in Buckeye, Ariz. The farm owners have liked them so much, they hire them after they've served their sentences.

"It's a dynamic, long-term program that offers win-win-win solutions: for an agency seeking to place offenders in work programs and reduce recidivism; for offenders seeking purpose, new job skills and steady employment following incarceration; and for Hickman's, which has a demand for great talent and a huge commitment to the community.

"Hickman's has been so impressed with the offender workforce, they have hired many upon release, and now, based on the success of this program, Hickman's recently began subsidizing housing for some of its ex-offender workforce. It's a further hand up for this special workforce to reduce the potential to return to prison and to help ensure their success upon release." More details on this amazing partnership can be found here.

Patricia Daniels, executive director of Constructing Hope in Portland, Ore., explains her organization's mission: "The construction industry is experiencing an acute labor shortage. Constructing Hope has responded by creating a program where the formerly incarcerated, homeless, people in recovery and others can develop long-term careers in the construction trades.

"We've partnered with government agencies, employers and unions to create a rigorous process by which our clients receive job-specific training and apprenticeships that prepare them to become reliable, productive employees and good citizens.

"We've had numerous success stories, including many that are incredibly heart-warming. Our clients have found gainful, meaningful employment, employers have found good employees, and individuals and their families have healed."

SHRM President and Chief Executive Officer Johnny C. Taylor, Jr., SHRM-SCP, encouraged HR professionals to make a real difference for their employers and the community.

"We HR professionals can and must do a better job at creating second-chance employment opportunities for the formerly incarcerated. If we do, everyone wins: Employers acquire valuable employees, and people remain happily crime-free. Our profession can make a great contribution to society. Let's do it!"

Taylor invites readers to send suggestions or other input to contribute to the Getting Talent Back to Work initiative to shrmceo@shrm.org.

Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to jathan@jathanjanove.com.



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