BACK TO BUSINESS
HOW HIRING FORMERLY INCARCERATED JOB SEEKERS
BENEFITS YOUR COMPANY

A report from the Trone Private Sector
and Education Advisory Council to the
American Civil Liberties Union
TRONE PRIVATE SECTOR AND EDUCATION ADVISORY COUNCIL TO THE ACLU

1

BACK TO BUSINESS
At America’s Expense:

The Mass Incarceration of the Elderly
HOW
HIRING FORMERLY INCARCERATED
JOB SEEKERS BENEFITS YOUR COMPANY
June 2012

©2017 ACLU Foundation

ACLU
AMERICAN CIVIL LIBERTIES UNION

American Civil Liberties Union
125 Broad Street
New York, NY 10004
www.aclu.org
Cover image credit: Tim Gruber

TRONE PRIVATE
SECTOR AND EDUCATION
ADVISORY COUNCIL
David Trone (Chair)
Total Wine & More
Clay Bennett
Dorchester Capital
Carol Choi
United Exchange Corp.
Janice Davis
eWaste Tech
Michele Goodwin
University of California-Irvine
Mark Holden
Koch Industries
Michael Lomax
United Negro College Fund
Paul Sagan
Akamai Technologies
David Scott
Wal-Mart

ACLU
Anthony Romero
Executive Director
Jeffery Robinson
Director, Trone Center for Justice
and Equality
Terry Tang
Director of Publications, Editorial
Megan French-Marcelin
Policy Research Manager/ACLS
Public Fellow

KEY ADVISORS
Daryl Atkinson
Forward Justice
Beth Avery
National Employment Law Project
Susan Burton
A New Way of Life
William Cobb
ACLU
Maurice Emsellem
National Employment Law Project
Kenneth Glasgow
The Ordinary People Society

Affiliations are for identification purposes and do not imply institutional endorsement.
© Cover Photo Shutterstock/Daniel2528

Norris Henderson
Voice of the Experienced
Silas Horst
Koch Industries
Jenny Kim
Koch Industries
Manuel La Fontaine
Legal Services for Prisoners
with Children
Lew Maltby
National Workrights Institute
Glenn E. Martin
JustLeadershipUSA
Roberta Meyers
Legal Action Center
Vivian Nixon
College and Community
Fellowship
Dorsey Nunn
Legal Services for Prisoners
with Children
Dariely Rodriguez
Lawyers’ Committee for Civil
Rights Under Law

CONTENTS
INTRODUCTION......................................................................... 4
SUMMARY.. .............................................................................. 7
HOW HIRING FORMERLY INCARCERATED JOBSEEKERS WILL
INCREASE YOUR BOTTOM LINE....................................................... 8
HOW TO CREATE AND SUSTAIN FAIR CHANCE HIRING......................... 12
Banning the Box................................................................. 12
Avoiding Negligent Hiring Liability ........................................ 14
Conducting Accurate Background Checks.............................. 14

GETTING SUPPORT FOR FAIR CHANCE POLICIES. ................................ 15

THE BROADER CHALLENGE OF EDUCATION AND TRAINING................... 17
ACTIONS AND RECOMMENDATIONS............................................... 22
RECOMMENDATIONS ON EDUCATION............................................... 26
ENDNOTES............................................................................. 27
APPENDIX A: RESOURCE PAGE. .................................................... 31
APPENDIX B: “BAN THE BOX” MAP................................................ 32
APPENDIX C: MAKING REENTRY WORK FOR YOUR COMPANY —
M.A.D.E. TRANSITIONAL SERVICES................................................ 33

INTRODUCTION
T

oday, 70 million Americans—one in three adults—have a criminal record. This is the result of
nearly five decades of punitive criminal justice policies that fed mass incarceration.1 While 2.3
million people are imprisoned in the United States, 95 percent of people in state prisons will re-enter
our communities at some point.2 More than 640,000 people are released from prisons each year.3

NEARLY

75%

OF FORMERLY INCARCERATED
INDIVIDUALS ARE STILL UNEMPLOYED
A YEAR AFTER RELEASE

Because of the stigma associated with a
criminal record, nearly 75 percent of formerly
incarcerated individuals are still unemployed a
year after release.4 Some government policies—
like making these individuals ineligible
for professional licenses in cosmetology or
roofing work—create significant obstacles to
employment.

A lack of stable employment increases the
likelihood that an individual will return to jail
or prison; research has found that joblessness
is the single most important predictor of
5
recidivism. The impact on black and Latino communities has been particularly destructive.6 Pervasive
racial disparities in the criminal justice system exacerbate bias in the employment arena.7 For African
Americans, the adverse effect of a criminal record on getting a job interview is 40 percent greater than
for whites with similar histories. 8
The consequences of unemployment for this population can be ruinous. At the national level, economists
estimate that the gross national product is reduced between $78 and $87 billion dollars as a result of
excluding formerly incarcerated job seekers from the workforce.9

Some business leaders across the country, recognizing the damage, are finding ways to reduce barriers
to employment. Corporations like Total Wine & More, Starbucks, Home Depot, American Airlines,
Koch Industries and Under Armour have created hiring practices inclusive of people with criminal
records.10 Smaller companies, including Butterball Farms, Dave’s Killer Bread, and Haley House Bakery,
have found qualified talent by tapping into this pool of job seekers.11
Research by economists confirms that hiring people with records is simply smart business. Retention
rates are higher, turnover is lower, and employees with criminal records are more loyal.12 Given the
costs associated with turnover and recruitment, researchers have found that “employees with a criminal
background are in fact a better pool for employers.”13

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BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

Business leaders are in a strong position
to make a positive difference for these individuals and their communities. By expanding the hiring pool to include people
with criminal histories, companies can
improve their bottom line, reduce recidivism and incarceration costs, avoid discriminatory practices, and increase public
safety.

RESEARCH REVEALS
THAT EMPLOYEES WITH
CRIMINAL BACKGROUNDS
ARE IN FACT A BETTER POOL
FOR EMPLOYERS

CASE STUDY

Walmart
As one of the largest employers in the United States, Walmart has made a commitment
not to judge job seekers only by their past mistakes. The company has taken questions
about criminal history off its employment applications and has established a vetting
team to consider an individual’s total profile and qualifications, including demonstrated
efforts at rehabilitation The company will run a background check only after a

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conditional offer is made. If the candidate accepts the offer, they are asked to consent
to a background screening and are required to self-disclose their criminal conviction.
Background checks and collection of the consent forms from the candidate (to include
the self disclosure) are online and centralized so the hiring manager and HR teams in
the facility are not aware of convictions disclosed, only whether the candidate is eligible
for hire or deferred for hire to a later date based on the final results of the report.
Candidates that appear to have something potentially adverse on their record are
allowed to participate in a review by providing additional information that only they
can give (i.e., rehabilitation efforts, continuing education, work experience, etc.) before
Walmart makes a final decision to hire. These standardized hiring practices protect the
applicant from discrimination in the work place and offer a fair chance at employment.
Susie’s* application to work at a Walmart distribution center was flagged when a
background check came back with nine convictions, ranging from drug possession to
attempted first-degree murder. She was 17 when she and a relative, also a teenager,
were playing with a gun when it discharged and killed her companion. She was
convicted and served nine years in state prison. Upon release, she started stealing and
delivering drugs for dealers. Within a few years though, Susie began taking steps toward
rehabilitation and to change her life. She joined a local church, and began to speak at
local prisons about her experiences with rehabilitation and recovery. She has spent
several years volunteering with a local sports team that mentors low-income children of
color. Recently, she was appointed to the board of directors for a local rehabilitation and
reentry center for formerly incarcerated individuals. When she applied for the job at
Walmart in 2008, the company gave her a fair chance based on all of the facts presented
during the background check process. She has performed so well that she was promoted
to area manager in January 2017.
Thomas H is a Walmart employee who got a second chance under this policy. In 1990,
Thomas was working as a part-time armed security guard at a warehouse to pay for
college. He dreamed of becoming a pharmacist. Unbeknownst to him, the warehouse
was being used at night as an illegal gambling facility. One night, F.B.I. and the local
police department raided the warehouse. Thomas believed he was in danger, fired his
weapon and killed two officers. He was found guilty of two counts of manslaughter
and sentenced to five years, of which he served 11 months. After being pardoned by the
state’s governor, Thomas finished pharmacy school and began a career as a pharmacist.
In 2015, he applied to Walmart for a pharmacy position. When a background check
flagged his conviction, the hiring team weighed his criminal record against his nearly 24
years without another arrest and decided that the risk in hiring him was very low. For
the past two years, Thomas has managed a Walmart supercenter pharmacy.
*Pseudonyms have been used in the case studies to protect the individuals’ privacy.

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SUMMARY
T

his report examines successful efforts by corporations and government leaders to promote “fair
chance” policies for people with criminal histories. It reviews the latest research on the effect of a
criminal record on employment interviews and on the job performance of workers with such records.
Several case studies presented here show how fair chance policies can promote loyalty and stability in
the labor pool.
The report provides a roadmap for businesses seeking to create and sustain fair chance policies, including
“banning the box,” or removing criminal history questions from job applications. It explains how hiring
officers can effectively carry out this policy, and how to choose background check companies that use
best practices in data collection.
It analyzes racial bias that has been connected with “ban the box” policies, and how to eliminate such
bias by training administrators involved in hiring processes. The report also outlines compliance
requirements with federal equal employment rules as they apply to people with criminal records. And
it examines the issue of negligent hiring liability and how to avoid such liability.
Education is critical to job readiness, employee
retention, and economic mobility. The costs
of re-incarceration far exceed the costs of
correctional education, and access to training
and higher education have been shown to
reduce recidivism and increase the likelihood
of employment upon release. One case study
describes how one college is developing inprison education programs under a federal
pilot program and offers a model for making
correctional education scalable.

EDUCATION
IS CRITICAL TO JOB READINESS,
EMPLOYEE RETENTION, AND
ECONOMIC MOBILITY

The report examines how partnering with workforce training and development programs can help
employers succeed with employees who have been in prison. Many workforce development agencies
offer training and counseling tailored to help these individuals transition into jobs. Lastly, the report
provides recommended actions that businesses can take to create a fair chance for all.

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HOW HIRING FORMERLY
INCARCERATED JOBSEEKERS
WILL INCREASE YOUR
BOTTOM LINE
B

usinesses, small and large, can strengthen their workforce by opening their hiring process to all job
seekers, without excluding those with criminal records. Recent research has found that employees
with records are retained at higher rates than those without criminal histories. Better retention can
significantly reduce an employer’s recruitment and training costs for lower-skilled white-collar workers,
which analysts estimate are close to $4,000 per employee.14 In fact, with higher retention rates and
greater loyalty, job seekers with criminal histories, researchers say, are “a better pool for employers.”
Companies are recognizing this advantage. At Total Wine & More, human resources managers found
that annual turnover was on average 12.2 percent lower for employees with criminal records.15 Electronic
Recyclers International (ERI) saw a similar outcome: by adopting a program to recruit employees with
criminal histories it reduced turnover from 25 percent to just 11 percent.16
These results are not unusual. “The
characteristic of job loyalty and company
dedication by [formerly incarcerated] workers
is repeatedly noted to us by employers,”17
says Luis Brown-Peña, an administrative
supervisor for the Minnesota Department of
Employment and Economic Development.
A continuing study tracking 500 employees
with criminal records, conducted by the Johns
Hopkins Health Resource Center, has found
that retention rates were substantially higher
for these individuals.18 While final results have
yet to be released, of the 79 employees with very
serious criminal records; 73 were still employed five years later; only one employee was terminated.19

ARMY ENLISTEES WITH
FELONY RECORDS WERE

33%

MORE LIKELY TO BE
PROMOTED TO SERGEANT

A study of the nation’s largest employer, the United States military, supports this conclusion. The
armed forces have been engaged in recruiting individuals with felony convictions, providing waivers

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for candidates who show good moral character. Enlistees with felony records were 33 percent more
likely to be promoted to sergeant than those with no conviction history, irrespective of other factors,
including educational background.20 Evidence also suggests that individuals with criminal records will
be more motivated to perform because they often have fewer employment options.21 Hence, not only
is retention better; the candidates do better once on the job. As one human resources consultant said,
“When you eliminate this portion of the population, you miss out on talent.”22
The benefits of hiring these individuals go far beyond improving a company’s bottom line. Companies
with fair chance policies are also playing an important role in reducing public spending associated with
cycles of re-incarceration. Experts note that employment a critical factor associated with reductions in
recidivism—two years after release, employed individuals were twice as likely to have avoided arrest as
their unemployed counterparts.23
Without work, formerly incarcerated individuals can fall back into criminal behavior and are likely to
end up on public assistance programs. Individuals who were homeless prior to incarceration (almost
10 percent of those entering jails and prisons each year are homeless) are five times more likely to be
homeless after release than those who were not homeless prior to incarceration.24 These conditions
burden taxpayers with increased public costs for shelters and social services.

© Shutterstock/sirnength88

Stable employment, by helping to reduce re-arrests and re-incarceration, also keeps down prison costs,

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which have been a huge strain on state and local budgets. A nonprofit organization, DC Central Kitchen
in Washington, D.C., that hires formerly incarcerated individuals, reports that its program eliminates at
least $2.4 million in incarceration costs annually.25
A study conducted in Philadelphia concluded that employing just 100 more formerly incarcerated
individuals would lead to a $2 million reduction in the city’s correctional costs.26 A Florida study
estimated that increasing employment for individuals released from state prisons by 50 percent would
save the state $86 million annually in costs associated with future recidivism.27 Similarly, Pew Research
Center has suggested that if states could lower recidivism rates by just 10 percent, they could save an
average of $635 million annually.28
There is also strong evidence that putting up employment barriers for people with criminal histories
hurts the economy. The employment penalty imposed on people with criminal records results in a loss
of somewhere between $78 and $87 billion in annual gross domestic product.29 This means millions
of dollars in lost tax revenue for state and local jurisdictions. Massachusetts alone reports as much as
$20 million lost annually in reduced tax revenue because of the limited earning potential of formerly
incarcerated people.30
Expanding employment opportunities would also improve spending and economic conditions in
communities that are most damaged by mass incarceration. A Washington State study revealed that the
benefit to taxpayers from a reduction in crime due to job training and employment for a single formerly
incarcerated individual amounted more than $2,600.31 The nonprofit organization DC Central Kitchen
found that its full-time employees with criminal histories contributed over $60,000 in payroll taxes
annually.32 The benefits can have a substantial impact on fragile communities. As John Santa, former
chair of Santa Energy, a Connecticut-based oil and gas supplier, observed: “When individuals coming
out of prison get and keep jobs, our whole community benefits. Businesses fill jobs, taxpayers are not
paying the costs of incarceration and new employees are paying taxes and contributing to the local
economy as productive members of society.”33

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CASE STUDY

Total Wine & More

The numbers are compelling. Total
Wine & More has been tracking its
retention rates and collecting data
on the results of fair chance hiring.
Although turnover is high in retail
industries, particularly for entry-level
positions, Total Wine & More believed
that this pool of potential employees
was worth considering. “We were sure,”
Mr. Trone said, “that people with a
criminal background were going to
be more loyal and have better rates of
retention.”

© Total Wine & More

David Trone believes in second chances.
That’s why his company, Total Wine
& More, has made a commitment to
hiring people with criminal histories.
“We are working to give folks the
benefit of the doubt,” Mr. Trone said,
“and knowing the numbers, we believe
it’s an imperative.”
TURNOVER FOR EMPLOYEES
WITH CRIMINAL BACKGROUND
AS COMPARED TO OVERALL
EMPLOYEE TURNOVER
+/- Difference
Cashier

-14.10%

Stock

-11.40%

Wine Assistant

-10.90%

Indeed, across several job types, turnover was significantly lower for employees with a
criminal record than those without. In fact, for cashiers, the first-year turnover was 14.1
percent lower for employees with criminal convictions. This held true for positions in
merchandising (stock) and wine assistants.
These results, which have mirrored studies in comparable industries, were found not only
for individuals with low-level drug- or alcohol-related offenses, but also for individuals
with more serious convictions. More than half of the employees with criminal histories
had convictions for theft, assault and battery, or another serious offense.
For Mr. Trone, the company’s policy represents a core value that’s also smart business.
“It is about giving individuals the opportunity to turn their lives around. My employees
have gone on to do great things,” he says.

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HOW TO CREATE AND SUSTAIN
FAIR CHANCE HIRING
F

air chance hiring is about giving the 70 million Americans with a criminal conviction a fair shot
at a job and a decent life. The economic benefits to both employers and the national economy are
clear. This chapter offers information on how to develop and maintain fair chance hiring practices that
work for business.
In 2016, more than 300 companies, including every employer on the Trone Private Sector and
Education Advisory Council, signed the White House Fair Chance Hiring Pledge, in which companies
commit to postpone criminal history questions until an interview is conducted or a conditional offer
of employment is made.34 Signatories ranged from large corporations like Koch Industries, Coca-Cola,
and CVS Health to smaller companies like Ben & Jerry’s, Dave’s Killer Bread, and WeWork.35 The pledge
serves as a good baseline for implementing fair chance policies.

Banning the Box
The campaign to “ban the box”—eliminating criminal record questions on job applications—was
spearheaded by the All of Us or None organization more than a decade ago.36 The policy does not
exclude the use of criminal background checks or discussion of criminal histories. Rather, it encourages
employers to eliminate blanket exclusions of people with criminal records, delaying criminal history
inquiries until later in the hiring process, and ensuring that information about an applicant’s criminal
record is considered in a job-related context.
As of May 2017, 28 states and more than 150 cities and counties have passed some form of “ban the
box” legislation. While most of these laws apply only to public sector employment, the policies extend
to private sector employers in nine states and 15 major cities.37 In cities that have adopted fair chance
policies, job opportunities for people with criminal histories have expanded significantly. When
Minneapolis banned the box in 2007, more than 50 percent of job seekers with criminal convictions,
whose records were previously marked as a “concern,” were hired for public employment in the first
year.38 And in Durham, North Carolina, 96 percent of those with criminal records applying for city jobs
were recommended for hire.39
While the track record with “ban the box” has been promising, this policy alone isn’t sufficient to
end discrimination if employers make assumptions that applicants of color are more likely to have a
criminal record.

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This pernicious dynamic exacerbates racial inequality in job opportunities. That’s why it’s imperative
that companies adopting a “ban the box”
policy train their staff to identify bias in the
hiring process and to root it out. The fact is,
most human resources professionals are not
equipped to assess how a prior conviction
might or might not interfere with an
individual’s capacity to do the job. Without
good training, managers may well fall back
on false, racially-biased assumptions. As one
employer notes, “We’re conditioned to be
hyper-vigilant” when it comes to employee
assessments.40 Absent education and data,
a sense of caution might well turn into
illegal discrimination that could be severely
damaging to job seekers and the company
itself.

96%

IN DURHAM, NORTH CAROLINA,

OF THOSE WITH CRIMINAL
RECORDS APPLYING FOR CITY
JOBS WERE RECOMMENDED
FOR HIRE

Aside from creating strong anti-bias programs, companies must also educate managers on how to
assess the relevance of a past conviction and evaluate an individual’s rehabilitation efforts.41 In other
words, managers have to be able to evaluate each job candidate on a case-by-case basis. See the National
Employment Law Project’s employer guides for additional assistance on conducting individualized
assessments, www.nelp.org.
Federal guidance echoes the need for individualized assessment. In 2012, the Equal Employment
Opportunity Commission (EEOC), as the federal regulatory body overseeing Title VII of the Civil Rights
Act of 1964, re-issued guidance stating that blanket exclusion of individuals with criminal convictions
disproportionately impact black and Latino job candidates, given the pervasive racial disparities in the
criminal justice system.42 To avoid liability, the EEOC requires employers to conduct individualized
assessments of job applicants who are screened out because of a criminal history.43 In such cases, the
applicant must be provided an opportunity to show that the exclusion should not apply because it is
not job related or a business necessity. The employer must consider other information, like the nature
of the crime, time from conviction, and the relevance of the misconduct to the job.

Avoiding Negligent Hiring Liability
Some employers refuse to consider applicants with criminal records for fear that such employees might
commit crimes on the job. While the number of lawsuits filed against employers for negligent hiring
is very small, it is a concern states can address sensibly.44 Negligent hiring liability is not a considerable

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risk for employers engaged in fair chance hiring, particularly if employers follow EEOC guidance. In
fact, one study concluded “[n]o research has shown that workplace violence is generally attributed to
employee ex-offenders or that hiring ex-offenders is causally linked to increased workplace violence.45
Some have restricted liability for negligent hiring in specific ways. In 2013, Texas passed legislation
that limits actions taken against an employer solely because of an employee’s criminal history.46 Under
that law, negligent hiring liability attaches only when the employer should have known of a conviction
and when the offense was committed “while performing duties substantially similar to those reasonably
expected to be performed in employment.” Several states have passed similar legislation to make it easier
for employers to hire people with criminal histories. These states include Alabama, Colorado, Georgia,
Indiana, Louisiana, Massachusetts, Michigan, New York, and Tennessee.47
In states that allow broader liability for negligent hiring, the Federal Bonding Program can help shield
employers with insurance grants that cover the hiring of people with criminal histories. The program,
managed by the Department of Labor, provides six-month bonds for individuals who, despite a
criminal history or past drug addiction, are otherwise qualified for the position.48 This allows employers
to hire and assess an individual’s skills without the risk of liability. If a company decides to retain the
employee after the six-month period, it can apply for private bonding insurance that would not have
been available without the certification of the Federal Bonding Program. The federal program has been
successfully used in 50,000 job placements.49 (For more information on negligent hiring, please contact
the National Workrights Institute.)

Conducting Accurate Background Checks
Banning the box is a first step. Employers who choose to conduct criminal background checks on
applicants should also abide by best practices on this process, as outlined by the EEOC. Background
checks should be limited to information that would be “job related for the position in question and
consistent with business necessity.”50 Employers should notify the background check agency, also
known as a commercial reporting agency
(CRA), of the types of convictions relevant
to the job. Human resources managers must
take care to choose an agency with high
standards, preferably one that is certified
by the National Association of Professional
Background Screeners (NAPBS). Agencies
that are certified submit to voluntary audits
and comply with nationally recognized
standards, including data verification
procedures and consumer protection

MORE THAN

50%DENIED
OF BACKGROUND CHECKS
CONDUCTED BY THE FBI INCLUDED
ERRONEOUS INFORMATION

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protocol.51 However, less than one percent of all background checking companies adhere to the
standards set forth by NAPBS.52
Contracting with a qualified agency is critical because a lot of background check data is wrong or
incomplete. In fact, one study of New York State found that 87 percent of criminal records reported
included at least one error.53 According to the Department of Justice, background checks of federal
employees conducted by the FBI include inaccuracies approximately 50 percent of the time.54 Similarly,
a study issued by the Government Accountability office found that as of 2012, 10 states did not include
information about the disposition of criminal cases in over 50 percent of their criminal background
checks. 55
These errors occur for several reasons. Courts do not always include disposition data in their records,
so while arrests are included, dismissals or diversions are not. In other cases, background checks will
include information that has been expunged or sealed.56 Very often, errors involve misspelled names,
failure to make distinctions between individuals with similar names, or reporting a single conviction
more than once.57 Job applicants are often unaware of these inaccuracies and thus unable to correct
them. Reporting companies that follow best practices will report only relevant convictions, confirm the
accuracy of the record, and update records periodically.

Getting Support for Fair Chance Policies
Businesses that adopt fair chance hiring can take advantage of some federal and state programs designed
to encourage these policies. The federal Work Opportunity Tax Credit allows employers who hire
workers with criminal records to reduce their federal income tax by as much as $9,600 per employee in
the first two years of work.58 Many states and cities have their own incentive programs.
Workforce development programs, run by state and local governments, as well as programs run by
nonprofit organizations, can help businesses ensure that workers get the support they need. These
programs can offer new employees training and other services, like getting into transitional housing,
substance abuse counseling, and transportation to work—at no cost to the employer. 59 They can also help
people recently released from prison develop workplace skills, including interpersonal communication,
customer service preparation, and training on teamwork. The best programs provide this type of job
coaching coupled with GED courses.60
These programs can also offer employers advice on how to apply for tax credits and subsidies and
provide case management for employees with criminal histories. And they have the expertise to educate
businesses on state and local laws that pertain to the employment of people with criminal records. (See
the Legal Action Center’s H.I.R.E. Network clearinghouse for a list of workforce development programs
by state.61)

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CASE STUDY

Koch Industries
Employers today are engaged in a global battle for talent. They need the best employees,
not just the best employees without a criminal record. At Koch Industries, Inc., we believe
in second chances. That’s why we opted to “ban-the-box” and removed questions about
an applicant’s criminal record from our employment applications. We instead perform
job-related background checks only on candidates who receive a conditional offer of
employment. This approach has worked well for us, and we encourage other employers
to voluntarily “ban-the-box,” as well. Blanket prohibitions without any evaluation of
the entire record do not significantly enhance public safety, and may, in fact, hurt it.
But beyond just fair chance hiring, we believe people who have served their time and
want to pursue a second chance deserve the opportunity to rebuild their lives. We should
all have the humility to realize that no one should be judged forever by what happened
on their worst day. Businesses and society need to support a culture of opportunity to
give persons with criminal records a chance to lead a productive and purposeful life. We
all have a stake and a role in this. Who among us has not received and valued a second
chance in life?
We also encourage policymakers across the country to start thinking about making
positive reforms to our criminal justice system that will help people improve their lives.
The human, societal, and fiscal costs of our current systems are simply unsustainable.

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THE BROADER CHALLENGE OF
50%
EDUCATION AND TRAINING
E

ducation is central to reducing recidivism and improving chances of post-release employment.
A 2013 RAND Corporation study found that participation in a correctional education program
decreased the likelihood that individuals would become engaged in criminal behavior after release.62 In
fact, any form of educational participation resulted in a 43 percent reduction in the rate of recidivism
over three years. A Texas study, found that higher education reduces recidivism even further: Incarcerated
individuals who earn a bachelor’s degree
return to prison at a rate of just 5.6 percent.63

PARTICIPATION IN CORRECTIONAL
EDUCATION RESULTS IN A

In California, the Prison University Project,
housed at the maximum security San Quentin
Correctional Facility, reports a 17 percent
recidivism rate with no violent offenses among
their graduates compared with an average rate
of 65 percent for incarcerated individuals
overall.64 The Bard Prison Initiative, which
operates in six medium- and maximumsecurity prisons in New York State, enrolls
300 men and women in college programs.
Formerly incarcerated individuals who have
participated in the Bard program return to prison at a rate of less than 2 percent.65 New York’s College
and Community Fellowship (CCF), one of the few programs that works directly with justice-involved
women, reports a recidivism rate of less than two percent for college graduates. Combining prison inreach with academic counseling and leadership training, CCF has aided women in obtaining over 300
degrees.66

43%

REDUCTION IN RECIDIVISM
OVER THREE YEARS.

The reductions in recidivism are reason alone to expand and promote robust correctional education
programs, but there are significant savings associated with these programs as well. RAND estimates
that for every dollar spent on prison education, $5 is saved on correctional costs.67 The Bard Prison
Initiative estimates that the program costs $5,000 per year per student, while incarceration in New York
state prisons costs more than $60,000 per incarcerated individual per year.68 Bedford Hills, a women’s
maximum-security correctional facility in New York, reported that providing 100 women access to
college-level education, reduced recidivism rates and saved the prison more than $900,000 in a twoyear period.69

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17

© Reuters/Robert Galbraith

FOR EVERY DOLLAR SPENT
ON PRISON EDUCATION,
IS SAVED ON
CORRECTIONAL
COSTS

$5

Furthermore, education improves the chances
of getting a job. People who participate in
correctional education programs are 13 percent
more likely to be employed following their
release.70 Not only are individuals with criminal
records far less likely to commit new crimes,
they are better situated to support their families
and pay taxes, and are less likely to be reliant on
public support.

Unfortunately, access to correctional education
has diminished significantly since the enactment
of the 1994 Violent Crime Control and Law Enforcement Act, which eliminated federal funding
for incarcerated individuals seeking to take college courses.71 While Pell Grants awarded to these
individuals made up just one-tenth of a percentage point in the overall program’s budget, the impact
of this exclusion was dramatic. Where there were once more than 350 degree-granting programs in the
nation’s prisons, there were only eight in 2005.72
In response to advocacy by coalitions like Education from the Inside Out, the Obama administration’s
Second Chance Pell Pilot Program, which was rolled out in 2016, extends Pell Grants to 12,000 students
in 104 penal institutions.73 Sixty-seven colleges and universities were selected to provide educational
services—from vocational certifications, associates and bachelor degrees—at federal and state prisons
under this program, and of these, more than 10 percent are colleges that traditionally serve students of

18

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

color.74 The program provides $30 million in Pell grants to incarcerated students in 27 states.
With research clearly showing that in-prison education can help reduce recidivism and increase
employability after release, this pilot program should be expanded. And if employment is the goal
for the hundreds of thousands leaving prisons every year, then “we need to be asking how does the
educational experience contribute to doing more than providing subsistence,” says Dr. Michael Lomax,
President of the United Negro College Fund.

CASE STUDY

Wiley College
Selected by the Obama administration along with 66 other colleges and universities
for the Second Chance Pell Pilot Program, Wiley College in Texas, a historically black
college, is creating associate and bachelor degree programs in prisons, taught by college
professors and teaching aides, beginning in Spring 2017. Wiley will work in three
Louisiana penitentiaries, including one women’s facility. Students will get the chance
to pick from several majors, including criminal justice and sociology. Dr. Tracy Andrus,
director of Wiley College’s Criminal Justice Department and the college’s prison
program, sees this initiative as instrumental to elevating the mission at the center of
Historically Black Colleges and Universities: equitable opportunity, social justice, and
economic mobility.
The programs are a natural fit for the colleges, says Dr. Andrus, who served time in
one of the prisons where Wiley will now operate, before going on to earn a Ph.D. in
juvenile justice. He sees this as a chance to expand the college’s efforts to work with
nontraditional students. “This program will serve a population that is not unlike many
of the students at Wiley already,” he says, noting that students at Wiley often come from
the same impoverished communities.
It is critical, he says, to develop spaces for learning in prisons. “Many of these individuals
never got a first chance, let alone a second,” Dr. Andrus notes, “This can be a critical
means of beginning, at least, to correct the structural inequalities that led to policies of
mass incarceration.”

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Post-Incarceration
Education and Training

“

WE NEED TO BE ASKING HOW
DOES THE EDUCATIONAL
EXPERIENCE CONTRIBUTE TO
DOING MORE THAN
PROVIDING SUBSISTENCE”

People with criminal histories face
significant barriers to continuing
their education after incarceration.
A study conducted by the Center
for Community Alternatives found
that nearly two-thirds of the colleges
surveyed collected information on
—Dr. Michael Lomax, President of the United Negro College Fund
students’ criminal background.75
Such questions deter individuals
from applying for entrance because
they are likely to assume that having
a criminal record will exclude them automatically.76 Colleges are starting to wrestle with this problem.
The State University of New York system recently “banned the box” on its application form at the
urging of politicians and advocates,77 though the SUNY system may still ask about felony records for
any student applying for campus housing or seeking to enter certain programs, like study abroad.
Many employers recognize that employees with criminal records need training and education
opportunities. They’re partnering with federal- and state-funded workforce development programs to
provide stipends for employees with risk factors (including criminal histories) to attend training tailored
to their job needs, as well as college programs. Some workforce development programs offer GED
courses, literacy tutoring, and occupational skill development. Many also coordinate with employers
to provide on-site training. Total Wine & More, for example, provides both GED courses and access
to college programs by partnering with the University of Maryland to offer online courses. “When
employees see you invest in their future, they grow with the company,” says David Trone, founder of the
company.

CASE STUDY

eWaste Tech, Richmond, VA
Felipe Wright and Janice Davis, founders of eWaste Tech, saw an opportunity to bring
social entrepreneurship to the growing electronic waste recycling industry. The company, established in 2014, seeks to employ marginalized job seekers—veterans, public housing residents, and people with criminal convictions. To meet the needs of this

20

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

© eWaste Tech

population, it created flexible work schedules and a comprehensive training program.
Nearly half of its employees have criminal histories.
eWaste Tech also partnered with ResCare, a workforce development center, which
provides professional skills training, federally-funded stipends to attend school, and
assistance in connecting employees to social services. eWaste Tech now has several
employees attending college programs. As Ms. Davis says, “We are interested in improving
the quality of life of our employees. The dividends are that you have employees with a
desire to remain, there is a lot of trust, and that reduces turnover.”
Tim was just six days out of prison when he attended a job fair hosted by ResCare and
found himself at the eWaste Tech booth. During the interview process, Tim explained
the circumstances surrounding his conviction. Mr. Wright recalled, “He came up and
said to me: If you give me this chance, I will never ever let you down.” Mr. Wright hired
him on the spot, and Tim began training later that week. Tim now runs the shop floor,
overseeing the work of all the warehouse and technical employees. There are dozens of
stories like his at the company. Nearly 76 percent of formerly incarcerated job seekers
said they were unemployed in the first year of release. eWaste Tech shows that businesses
can change that trend. The result of its efforts, Ms. Davis believes, is a dedicated and
stable staff. “The dividends are that you have employees with a desire to remain,” she
says, “there is a lot of trust, and that reduces turnover.”

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ACTIONS AND
RECOMMENDATIONS
H

iring new employees is a critically important and costly function for any business. Every hiring
decision represents a major investment that employers must make with limited information.
Responsible hiring practices, outlined here, can help employers comply with the law, minimize the risk
of liability, and better meet their staffing needs by expanding the pool of worthy applicants.

Legal Compliance and Employer Best Practices
The first step in developing fair and effective hiring programs is to ensure your company complies with
all civil rights and consumer protection laws and regulations. Employers have legal obligations under
Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act for all employees. There are
particular stipulations that apply to hiring people with arrest and criminal records. Some states and
local governments offer additional guidance to decision-makers by enacting fair chance policies, which
incorporate many of these federal protections.

a. Title VII of the Civil Rights Act of 1964:
An employer’s neutral policy of excluding applicants based on certain criminal history may
disproportionately impact some individuals protected under Title VII. This may constitute illegal
discrimination based on race or ethnicity if the employer is unable to show that the policy is job-related
and consistent with business necessity.
The employer can best defend against claims of discrimination for its screening policy by considering
the nature of the crime, the time elapsed, the nature of the job, and providing people identified by the
screening an opportunity for an individualized assessment.

22

■■

Ensure that hiring managers are not treating criminal history information differently for different
applicants, based on their race or national origin. It is illegal to ask only people of a certain race or
gender about their criminal records.78

■■

Remove questions about criminal records on application forms and delay the inquiry until the
interview, and preferably after a conditional job offer is made.

■■

Consider only convictions and pending prosecutions that are relevant to the job in question. Do not
consider arrests.

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

■■

Consider only convictions recent enough to indicate significant risk.

■■

Consider evidence of rehabilitation.

■■

Train human resources personnel to conduct individualized assessments that consider relevant
factors like the number of years that have elapsed since conviction; evidence of rehabilitation; the
connection of the crime to job duties. Provide anti-bias training to all staff with hiring responsibilities.

■■

If questions still persist, seek legal guidance before making any final decisions.

b. The Fair Credit Reporting Act (FCRA)
The federal Fair Credit Reporting Act requires that applicants who are going to be turned down for a job
because of the results of a background check be notified before a final decision is made and be given the
opportunity to review and challenge the information. A few states also have state FCRA requirements
that may go beyond the federal law. Some states prohibit the disclosure by background check agencies
of arrests that did not lead to conviction or minor criminal offenses like disorderly conduct.
■■

Notify the applicant in writing that the company may use the information obtained from a
background report for employment decisions.

■■

Get the applicant’s written permission to do the background check.

■■

Before making an adverse employment decision, promptly provide the applicant an opportunity
to challenge the information in the background report and to provide evidence of rehabilitation.

c. State and local laws, including “ban the box” statutes
Some states and local governments bar companies from using blanket exclusions against hiring
individuals with criminal histories. Others, like New York State, have passed comprehensive fair chance
hiring policies. Currently, nine states and 15 local jurisdictions prohibit private employers from asking
about an applicant’s criminal background on job applications and require private employers to delay
inquiring about criminal history until later in the hiring process, usually after a conditional offer of
employment has been made. (See Appendix for a comprehensive list.)
■■

If your company is subject to a state or local ban-the-box law, remove any question regarding
criminal conviction history from job applications.

■■

Remove language from employment advertisements that excludes applicants with criminal records.

■■

Educate recruitment and hiring managers about relevant state and local laws, and direct them to
delay asking about an applicant’s criminal history until after a conditional job offer has been made.

■■

Conduct anti-discrimination and implicit bias training for recruitment and hiring managers to
ensure that they are applying screening criteria objectively and consistently.
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23

Ensure accuracy and relevance in background check data
Making fair hiring decisions requires accurate information. Turning down a qualified applicant because
of inaccuracies in a criminal background check hurts both the applicant and the employer. Employers
should only engage credit reporting agencies that follow best practices.
Determine in advance the convictions that the company considers relevant for specific jobs and the
time period for which they are considered relevant. Provide these guidelines to the reporting agency
with instructions to report only convictions that meet the criteria. Alternatively, companies can handle
the report screening “in-house” using a consistent process to evaluate relevant convictions.
Questions to ask in selecting a credit reporting agency:
■■

Are you certified by the National Association of Professional Background Screeners?

■■

Do you verify all information with the original criminal justice source?

■■

Do you require the full name and at least one other identifier to match before reporting a criminal
record?

■■

Do you require all identifiers in your possession to match?

■■

Do you report all charges from a single incident as a single entry?

■■

Do you remove expunged or dismissed dispositions?

■■

Do you provide regularly updated information on the disposition of relevant cases?

Take affirmative steps to reach qualified jobseekers with
criminal records
Many people with criminal records have encountered so much rejection that they assume no employer
will give them a fair chance. Businesses who let it be known that they will consider people with criminal
histories will receive many qualified applicants they would not otherwise have seen.

24

■■

Frame job notices and advertisements in language that supports diversity and inclusion of persons
with criminal records.

■■

Attend job fairs that promote inclusionary practices.

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

■■

Post job openings with workforce development agencies and reentry programs that train and place
persons with criminal records.

■■

Develop partnerships with workforce development agencies and reentry job training programs that
can refer qualified and trained persons with criminal records. Most human resources professionals
aren’t trained to determine whether an applicant is rehabilitated and job-ready. Fortunately, many
workforce development organizations have experience in doing this and in placing people with
criminal histories in appropriate employment. See Appendix C for example.

Improve the hiring process and promote ways to monitor
progress
Employees making hiring decisions about applicants with criminal records need support and training.
They may fear being blamed if an applicant with a record is hired and later commits another offense.
Comprehensive training and a transparent process can reduce these concerns and enable hiring
managers to better meet company goals.
■■

Provide anti-discrimination and implicit bias training for all staff and managers who participate in
hiring decisions.

■■

Set clear objectives for fair hiring and recruitment efforts.

■■

Consider conducting regular statistical analyses to determine whether criminal record screening
policies are having an adverse impact on black and Latino job applicants.

■■

Have hiring decisions for applicants with criminal records made by a senior manager or a group of
managers.

■■

Keep the applicant’s record confidential.

■■

Require hiring managers to document the selection criteria they used.

■■

Train the human resources staff on facts about negligent hiring claims. The way to defend against
such claims is to conduct appropriate background checks and review evidence that mitigates the
applicant’s conviction history.

■■

Monitor recruitment and hiring results and adjust practices when necessary.

This toolkit was co-authored with the Legal Action Center, Lawyers’ Committee for Civil Rights
Under Law, and the National Workrights Institute.

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25

RECOMMENDATIONS ON
EDUCATION

26

■■

Partner with local workforce development programs to create continuing education programs
for employees. These programs can provide resources and opportunities for adult education and
professional development, often at no expense to the employer.

■■

Give employees an incentive to seek additional training and education by offering tuition assistance.
Modest investments in employee education may help reduce hiring and retraining costs.

■■

Lobby legislators to expand funding for prison education programs at all levels. Research shows that
education for incarcerated individuals can significantly reduce recidivism rates, advances public
safety and improves job-readiness when they reenter society.

■■

As a business leader, you can create opportunities for growth by supporting policies that expand
access to educational opportunities. Urge colleges and universities to “ban the box” on college
applications. A criminal record should not be used to exclude a qualified student from earning
a college degree. In the 21st century, post-secondary education is necessary for job security and
economic advancement. Colleges should embrace policies that give all applicants—including those
with criminal histories—a fair chance.

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

ENDNOTES
1.
Matthew Friedman, “Just Facts: As Many Americans Have Criminal Records As College Diplomas,” Brennan Center
for Justice, November 17, 2015: https://www.brennancenter.org/blog/just-facts-many-americans-have-criminal-records-college-diplomas; see also, Poverty and Opportunity Profile, “Americans with Criminal Records,” The Sentencing Project: http://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf;
for
broader history of criminal justice policies, see Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass
Incarceration (Cambridge: Harvard University Press, 2016).
2.
Timothy Hughes and Doris James Wilson “Reentry Trends in the U.S.,” Bureau of Justice Statistics, https://www.bjs.gov/
content/reentry/reentry.cfm.
3.

Prison Policy Initiative, “Mass Incarceration: The Whole Pie” (2017): https://www.prisonpolicy.org/reports/pie2016.html.

4.
Associated Press, “Ex-cons face tough path back into the work force: Advocates hope federal program will encourage
employers to take a chance,” July 30, 2009; http://www.nbcnews.com/id/32208419/ns/business-careers/t/ex-cons-face-tough-pathback-work-force/#.V_V1dY8rJhE.
5.
Justice Center, National Reentry Resource Center, “What Works in Reentry Clearinghouse: Employment,” The Council of
State Governments, n.d.: https://whatworks.csgjusticecenter.org/.
6.
Devah Pager, The Mark of a Criminal Record, American Journal of Sociology Vol 108, no. 5 (2003) 937-75; http://scholar.
harvard.edu/files/pager/files/pager_ajs.pdf.
7.

Ibid

8.

Ibid.

9.
Cherrie Bucknor & Alan Barber, Ctr. for Econ. & Policy Research, “The Price We Pay: Economic Costs of Barriers to Employment for Former Incarcerated individuals and People Convicted of Felonies” (2016). (http://cepr.net/images/stories/reports/
employment-prisoners-felonies-2016-06.pdf).
10.
“White House Launches the Fair Chance Business Pledge,” April 11, 2016: https://obamawhitehouse.archives.gov/thepress-office/2016/04/11/fact-sheet-white-house-launches-fair-chance-business-pledge.
11.
Tom Hillen, “White House turns to local company on hiring felons,” wood tv, December 23, 2016: http://woodtv.
com/2016/12/23/white-house-turns-to-local-company-on-hiring-felons/; Allison Aubrey, “This Bakery Offers a Second Chance for
Women After Prison, NPR, April 15, 2016, http://www.npr.org/sections/thesalt/2016/04/15/469942932/this-bakery-offers-a-second-chance-for-women-after-prison; Haley House, “What We Do,” http://www.npr.org/sections/thesalt/2016/04/15/469942932/
this-bakery-offers-a-second-chance-for-women-after-prison
12.
Daryl Atkinson, “The Benefits of Ban the Box,” The Southern Coalition for Social Justice, 2014, http://www.southerncoalition.org/wp-content/uploads/2014/10/BantheBox_WhitePaper-2.pdf
13.
Dylan Minor, Nicola Persico, and Deborah M. Weiss, “Criminal Background and Job Performance,” Working Paper, October 30, 2016: file:///Users/test/Downloads/SSRN-id2851951%20(1).pdf.
14.
Dylan Minor, Nicola Persico, and Deborah M. Weiss, “Criminal Background and Job Performance,” Working Paper, October 30, 2016, file:///Users/test/Downloads/SSRN-id2851951%20(1).pdf; see also Heather Boushey and Sarah Jane Glynn, “The are
Significant Business Costs to Replacing Employees,” Center for American Progress, November 16, 2012, https://www.americanprogress.org/wp-content/uploads/2012/11/CostofTurnover.pdf.
15.

Data collected by Total Wine & More. Processed March 22, 2017.

16.
Matt Krumrie, “Why You Should Give Candidates with a Criminal Background a Second Chance,” October 4, 2016,
https://www.ziprecruiter.com/blog/why-you-should-give-candidates-with-a-criminal-background-a-second-chance/.
17.

Matt Krumrie, “Why You Should Give Candidates with a Criminal Background a Second Chance,” October 4, 2016.

18.
Atkinson, “The Benefits of Ban the Box,” 2014, http://www.southerncoalition.org/wp-content/uploads/2014/10/BantheBox_WhitePaper-2.pdf.

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27

19.
Pamela D. Paulk, “The Johns Hopkins Hospital Success in Hiring Ex-Offenders,” May 2015, http://bgcheckinfo.cna.org/
sites/default/files/public/5thMtg_1-0c-Plenary_Pamela_Paulk_Presentation.pdf.
20.
Jennifer Lundquist, Devah Pager, and Eiko Strader, “Does a Criminal Past Predict Worker Performance? Evidence from
American’s Largest Employer,” Working Paper (2016): file:///Users/test/Downloads/ASRDraft01222016.pdf.
21.

Ibid.

22.
Mark Feffer, “Hiring Job Seekers with Criminal Histories,” HR Today, September 26, 2016: https://www.shrm.org/hr-today/news/hr-magazine/1016/pages/hiring-job-seekers-with-criminal-histories.aspx.
23.
Mark T. Berg and Beth M. Huebner, “Reentry and the Ties that Bind: An Examination of Social Ties, Employment, and
Recidivism,”Justice Quarterly 28 (2011): 382-410.
24.
Stephen Metraux and Dennis Culhane. “Homeless Shelter Use and Reincarceration Following Prison Release: Assessing
the Risk.” Criminology & Public Policy 3 (2004): 201-22.
25.
2012).

Eric Krell, “Criminal Background: Consider the risks—and rewards –of hiring ex-offenders,” HR Magazine 44 (February

26.
Economic League of Greater Philadelphia, “Economic Benefits of Employing Formerly Incarcerated Individuals in Philadelphia,” Office of the Deputy Mayor for Public Safety (September 2011): http://economyleague.org/uploads/
files/712279713790016867-economic-benefits-of-employing-formerly-incarcerated-full-report.pdf.
27.
Domenic Calabro, “Locked Up, Then Locked Out: Removing Barriers to Employment for Persons with Criminal Records,” Florida Tax Watch (2016): http://www.floridatrend.com/public/userfiles/news/pdfs/reemployment2016FINAL.pdf.
28.
Pew Center of the States, “State of Recidivism: The Revolving Door of America’s Prisons, 2011, http://www.pewtrusts.
org/~/media/legacy/uploadedfiles/pcs_assets/2011/pewstateofrecidivismpdf.pdf.
29.
Cherrie Bucknor & Alan Barber, Center for Economic and Policy Research, “The Price We Pay: Economic Costs of Barriers to Employment for Former Incarcerated individuals and People Convicted of Felonies” (2016): http://cepr.net/images/stories/
reports/employment-prisoners-felonies-2016-06.pdf.
30.
Benjamin Forman and John Larivee, “Crime, Cost, and Consequences: Is it Time to Get Smart on Crime?” MassINC
(March 2013): http://massinc.org/wp-content/uploads/2013/03/Crime_Cost_Consequences_MassINC_Final1.pdf.
31.
Elizabeth K. Drake, Steve Aos, and Marna G. Miller, “Evidence-Based Public Policy Options to Reduce Crime and Criminal Justice Costs: Implications in Washington State,” Victims and Offenders 4 (2009): 170-196.
32.

Eric Krell, “Criminal Background: Consider the risks—and rewards –of hiring ex-offenders,” 2012

33.
Daniela Altimari, “Business Survey Finds Support for Second Chances for Those with Criminal Records,” Hartford Courant March 21, 2017: http://www.courant.com/politics/capitol-watch/hc-business-survey-finds-support-for-second-chances-forthose-with-criminal-records-20170321-story.html.
34.
“Fair Chance Business Pledge,” The White House of President Barack Obama Archives, https://obamawhitehouse.archives.gov/issues/criminal-justice/fair-chance-pledge.
35.

Ibid.

36.
See Legal Services for Prisoners and Children, http://www.incarcerated individualswithchildren.org/our-projects/allofusor-none/
37.
Michele Natividad Rodrigues and Beth Avery, “Ban the Box: U.S. Cities, Counties and States Adopt Fair Hiring Policies,”
National Employment Law Project, October 1, 2016; http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-andlocal-guide/.
38.
Alexi Mccamond, “How effective is “ban the box” in helping ex-offenders get a job?”, June 16, 2016, Politico http://www.
politico.com/story/2016/06/how-effective-is-ban-the-box-in-helping-ex-offenders-get-a-job-224418.
39.
Ibid; The Southern Coalition for Social Justice, “The Benefits of Ban the Box,” (2014): http://www.southerncoalition.org/
wp-content/uploads/2014/10/BantheBox_WhitePaper-2.pdf.
40.
Mark Feffer, “Hiring Job Seekers with Criminal Histories,” HR Magazine, September 26, 2016: https://www.shrm.org/
hr-today/news/hr-magazine/1016/pages/hiring-job-seekers-with-criminal-histories.aspx.
41.
Roy Maurer, “Hiring Ex-Offenders Has Business, Societal Impacts, HR Magazine, April 20, 2016: https://www.shrm.org/
hr-today/news/hr-magazine/1016/pages/hiring-job-seekers-with-criminal-histories.aspx.

28

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

42.
U.S. Equal Opportunity Commission, “Consideration of Arrest and Conviction Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964,” 42 U.S.C., April 25, 2012, https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
43.

Ibid.

44.

Research conducted by Lew Maltby, President of the Workers’ Rights Institute (2017).

45.
A New Look at Job Applicants with Criminal Records,” Society for Human Resource Management (Oct. 22 2013),
https://www.shrm.org/legalissues/federalresources/pages/applicants-criminal-records.aspx; for more information see, National
Employment Law Project, “A Healthcare Employer Guide to Hiring People with Arrest and Conviction Records: Seizing the Opportunity to Tap a Large, Diverse Workforce,” September 2016, http://www.nelp.org/content/uploads/NELP-Safer-Toolkit-Healthcare-Employer-Guide-Hiring-People-with-Arrest-Conviction-Records.pdf.
46.
Traci Martinez, “On September 1, 2013, Texas Employers Can Worry Less About Negligent Hiring and Supervision Lawsuits Thanks to House Bill 1188,” Employment Law Worldview, August 20, 2013, http://www.employmentlawworldview.com/onseptember-1-2013-texas-employers-can-worry-less-about-negligent-hiring-and-supervision-lawsuits-thanks-to-house-bill-1188/;
H.R. Bill 1188, Sess. of 2013 (Tex. 2013), http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=83R&Bill=HB1188.
47.
Les Rosen, “New CO Law Gives Ex-Convicts More of a Chance to Find Jobs and Employers Less of a Chance of Liability
from Negligent Hiring,” ESR News, March 31, 2010, http://www.esrcheck.com/wordpress/2010/03/31/new-co-law-gives-ex-convicts-more-of-a-chance-to-find-jobs-and-employers-less-of-a-chance-of-liability-from-negligent-hiring/; Bryant Jackson-Green,
“How Business-Liability Reform Can Help Encourage Ex-Offender,” Illinois Policy, April 7, 2016: https://www.illinoispolicy.org/
how-business-liability-reform-can-help-encourage-ex-offender-employment/.
48.

Federal Bonding Program, “Background,” http://bonds4jobs.com/about-us.

49.

Ibid.

50.
U.S. Equal Opportunity Commission, “Consideration of Arrest and Conviction Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964,” 42 U.S.C., April 25, 2012, https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
51.
Persis Yu and Sharon M. Dietrich, “Broken Records: How Errors by Criminal Background Checking Companies Harm
Workers and Businesses,” National Consumer Law Center, April 2012: http://www.nclc.org/images/pdf/pr-reports/broken-records-report.pdf; see also National Association of Professional Background Screeners, “Standards,” 2009, http://pubs.napbs.com/
pub.cfm?id=D56F2B84-0D7B-570E-8742-7F9BE3E27878.
52.

Ibid.

53.
Legal Action Center, “Study of Rap Sheet Accuracy and Recommendations to Improve Criminal Justice Recordkeeping,”
(New York: Legal Action Center, 1996).
54.
United States Department of Justice, “The Attorney General’s Report on Criminal History Background Checks,” Office of
the Attorney General (2006): 3.
55.
United States Government Accountability Office, “Criminal History Records: Additional Actions Could Enhance the Completeness of Records Used for Employment-Related Background Checks,” February 2015, http://www.gao.gov/assets/670/668505.
pdf.
56.
The New York Times, “Faulty Criminal Background Checks,” April 24, 2012, http://www.nytimes.com/2012/07/25/
opinion/faulty-criminal-background-checks.html?action=click&contentCollection=Opinion&module=RelatedCoverage&region=EndOfArticle&pgtype=article; Persis Yu and Sharon M. Dietrich, “Broken Records: How Errors by Criminal Background
Checking Companies Harm Workers and Businesses,” National Consumer Law Center, April 2012: http://www.nclc.org/images/pdf/
pr-reports/broken-records-report.pdf.
57.
Josh Brodesky, “Background checks prone to mistakes, can shut out jobs,” USA Today, November 20, 2012: http://www.
usatoday.com/story/money/business/2012/11/20/background-screening-gone-wrong/1716439/; Alex Bender and Sarah Crowley,
“Haunted by the Past: A Criminal Record Shouldn’t Ruin a Career,” The Atlantic, March 25, 2015: https://www.theatlantic.com/
business/archive/2015/03/haunted-by-the-past-a-criminal-record-shouldnt-ruin-a-career/388138/.
58.
opptax/.

U.S. Department of Labor, “Work Opportunity Tax Credit Program,” https://www.doleta.gov/business/incentives/

59.
Le’Ann Duran, Martha Plotkin, Phoebe Potter, and Henry Rosen, “Integrated Reentry and Employment Strategies: Reducing Recidivism and Promoting Job Readiness,” Council of State Governments, September 2013, https://csgjusticecenter.org/
wp-content/uploads/2013/09/Final.Reentry-and-Employment.pp_.pdf.
60.

Center for the Study of Social Policy, “Results-Based Public Policy Strategies for Promoting Workforce Strategies for

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Reintegrating Ex-Offenders,” 2012, http://www.cssp.org/policy/papers/Promoting-Workforce-Strategies-for-Reintegrating-Ex-Offenders.pdf.
61.

H.I.R.E. Network, “National Clearinghouse,” Legal Action Center, http://hirenetwork.org/clearinghouse.

62.
Lois M. Davis, Robert Bozick, Jennifer Steele, Jessica Saunders and Jeremy N.V. Miles, “Evaluating the Effectiveness of
Correctional Education: A Meta-Analysis of Programs that Provide Education to Incarcerated Adults,” RAND Corporation, 2013:
http://www.rand.org/pubs/research_reports/RR266.html.
63.
Jurg Gerber and Eric J. Fritsch, “Prison Education and Offender Behavior: A Review of the Scientific Literature,” Texas
Department of Criminal Justice: Institutional Division, July 1993.
64.
Eric Westervelt, “Why Aren’t There More Higher Ed Programs Behind Bars,” NPR, September 7, 2015: http://www.npr.
org/sections/ed/2015/09/07/436342257/prison-university-project.
65.

Bard Prison Initiative, “FAQs,” http://bpi.bard.edu/faqs/.

66.

See College and Community Fellowship at: http://collegeandcommunity.org.

67.
Evaluating the Effectiveness of Correctional Education: A Meta-Analysis of Programs that Provide Education to Incarcerated Adults,” 2013.
68.

Bard Prison Initiative, “FAQs,” http://bpi.bard.edu/faqs/.

69.
Christopher Zoukis, “Pell Grants for Prisoners: New Bill Restores Hope of Reinstating College Programs,” Prison Legal
News, July 31, 2015: https://www.prisonlegalnews.org/news/2015/jul/31/pell-grants-prisoners-new-bill-restores-hope-reinstatingcollege-programs/.
70.

RAND Corporation: http://www.rand.org/pubs/research_reports/RR266.html.

71.
U.S. Congress, Violent Crime Control and Law Enforcement Act of 19994, Pub. Law no. 103-322 (U.S. Government,
Washington, D.C.).
72.
Katherine Long, “Behind Bars College is Back in Session in Some Washington Prisons, Seattle Times January 21, 2015:
http://www.seattletimes.com/news/behind-bars-college-is-back-in-session-in-some-washington-prisons/; see also Policy Brief,
“Restoration of Pell Grant Eligibility,” Education From the Inside Out Coalition, 2013: http://www.eiocoalition.org/files/EIO_PellGrant-2013-Policy-Brief_V4.pdf.
73.
Press Release, “12,000 Incarcerated Students to Enroll in Postsecondary Educational and training Programs Through
Education Department’s New Second Chance Pell Pilot Program,” U.S. Department of Education, June 24, 2016: https://www.
ed.gov/news/press-releases/12000-incarcerated-students-enroll-postsecondary-educational-and-training-programs-through-education-departments-new-second-chance-pell-pilot-program.
74.

Ibid.

75.
Marsha Weissman and Emily NaPier, “Education Suspended: The Use of High School Disciplinary Records in College
Admissions,” Center for Community Alternatives (2015): http://www.communityalternatives.org/pdf/publications/EducationSuspended.pdf.
76.

Ibid.

77.
Scott Jaschik, “SUNY Bans the Box,” Inside Higher Ed, September 15, 2016, https://www.insidehighered.com/
news/2016/09/15/suny-removes-question-criminal-convictions-application.
78.

30

U.S. Equal Employment Opportunity Commission, “Pre-Employment Inquiries and Arrest & Conviction, 2012.

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

APPENDIX A
Resource Page

For Compliance Concerns:

For Accredited Screening Companies:

National Workrights Institute
www.workrights.us
128 Stone Cliff Road
Princeton, NJ 08540

National Association of Professional
Background Screeners
www.napbs.com
110 Horizon Drive, Suite 210
Raleigh, NC 27615

Lawyers’ Committee For Civil Rights Under Law
www.lawyerscommittee.org
1401 New York Avenue, NW, Suite 400
Washington, DC 2005

For Assistance on Finding Workforce
Development Partners:
National H.I.R.E Network
www.hirenetwork.org
225 Varick Street
New York, NY 10014

For More Information on Ban the Box:
Legal Services for Prisoners with Children
www.prisonerswithchildren.org
1540 Market Street, Suite 490
San Francisco, CA 94102
National Employment Law Project
www.nelp.org
75 Maiden Lane, #601
New York, NY 10038

For More Information on Correctional
Education Programs:
Bard Prison Initiative
www.bpi.bard.edu
Bard College
PO Box 5000
Annandale-On-Hudson, NY 12504-5000
College and Community Fellowship
www.collegeandcommunity.org
475 Riverside Drive, Suite 1626
New York, NY 10115
Prison University Project
www.prisonuniversityproject.org
PO Box 492
San Quentin, CA 94964

Southern Coalition for Social Justice
www.southerncoalition.org
1415 West Highway 54, Suite 101
Durham, NC 27707
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APPENDIX B
States and Municipalities that Have Enacted “Ban the Box”
Legislation Applying to Private Sector Companies

Seattle, WA
Portland, OR
OR

Rochester, NY

MN

San Francisco, CA
Columbia, MO
Los Angeles, CA

Buffalo, NY
Chicago, IL
IL

Philadelphia, PA

VT

1~'

~. .

CT
~
NJ New York, NY

Baltimore, MD
Montgomery County, MD
District of Columbia
Prince George’s County, MD

Austin, TX

HI

32

MA
RI

BACK TO BUSINESS: HOW HIRING FORMERLY INCARCERATED JOBSEEKERS BENEFITS YOUR COMPANY

APPENDIX C
Making Reentry Work For Your Company
—M.A.D.E. Transitional Services

T

he process of hiring qualified formerly incarcerated candidates can be simplified with nonprofit
organizations that specialize in workforce development. An example for such engagement is
M.A.D.E. Transitional Services, a New York-based nonprofit agency that aids formerly incarcerated
individuals in their pursuit of employment.
Its success in providing employers with a steady stream of qualified, pre-screened candidates can be
traced to two sources: its unique leadership and its organizational model. M.A.D.E. was founded by
Toney Earl, Jr., and Tarik Greene—both formerly incarcerated—who now serve as the organization’s
Executive Director and Executive Deputy Director, respectively. They draw on hard-won knowledge in
developing their two-way recruiting and support model. This model accounts for both the specialized
needs of formerly incarcerated people as prospective employees as well as those of prospective employers.
As a result, they help secure placement, assure retention, and add value to both ends of the employment
equation.
While M.A.D.E. functions like a traditional recruiter, the program draws on evidence-based job-readiness
programs like the Department of Criminal Justice Services’ (DCJS) Ready, Set Work! and Thinking 4
a Change (T4C), which enhance soft skills such as effective communication, conflict resolution and
critical thinking. The agency conducts tailored career assessments at the outset to ensure an appropriate
and long-term fit, increasing the likelihood of job retention. After employment begins, they provide
individualized 30-, 60-, and 90-day support plans that address punctuality, work/life balance, and a
range of employee tools necessary to meet—and often exceed—employer expectations.
After placement, M.A.D.E. schedules periodic check-ins with employers to ensure hires are acclimating
well. This “early and often” paradigm allows for swift mediation of any concerns. Their ongoing support
also includes peer-to-peer engagement between current clients and other formerly incarcerated people
who have successfully transitioned to long-term employment.
They have a 76 percent job placement rate and just an eight percent recidivism rate. In one testimonial,
a White Plains Hospital HR Manager who has worked with M.A.D.E. stated that, “working with
M.A.D.E.’s clients has been an asset to our organization, and we look forward to a continued mutuallybeneficial working relationship.”

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