Beyond Balance: How to Let Go of Risk Assumptions and Build Truly Safe and Vibrant Workplaces
“Have you ever been convicted of a felony?” We’re all familiar with the question – the one that used to appear on virtually all employment applications – and today, for the most part, does not. For decades, formerly incarcerated people across the country worked with elected officials to remove this question, arguing that it unfairly excluded them from jobs they were qualified to do and heightened racial disparities. But have you ever wondered where the question came from, how and why it got added to applications in the first place?
The answer seems self-evident. Under our common assumptions, someone with a criminal record could pose a threat to the workplace. They may be untrustworthy, unreliable, or more likely than the next person to do something unethical or harmful at work. Past record - the assumption goes - equals future risk. Yet the vast majority of HR professionals and business leaders report that workers with criminal records perform just as well or better than those without records, and that the quality of hire is about the same.
As an anthropologist, I spent a year shadowing people with felony convictions who were looking for work, talking to business owners, managers and HR professionals, and watching hiring unfold. This allowed me to see that many decisions to deny jobs to people with records did not come from employers themselves. They came from assumptions about risk that employers did not invent and do not necessarily share.
My new book, The Criminal Record Complex: Risk, Race, and Hiring in America explores why some businesses choose to hire talent with records, while others do not. No surprise to the HR community: hiring is shaped by a wide range of factors and motivations, some internal, many external. Discrimination isn’t just a matter of employer bias.
The book digs beneath surface explanations to reveal the deeper story of how criminal background checks came to be considered common sense. For instance, that question – “have you ever been convicted?” – seems to have been born with the insurance industry’s effort to sell surety and fidelity bonds after WWII. These bonds stipulated that employment be denied to anyone with a criminal conviction unless exempted by the insurance company. Meanwhile, court rulings began to hold more employers responsible for the actions of their employees, new laws and policies restricted people with records from working in certain professions, and a screening industry, together with HR management, began to promote background checks as a best practice. Before long, the idea was widely accepted that people with convictions pose a risk to the workplace.
Not everyone swallowed the pill, however. In fact, the longer I spent doing field research, the more employers I met who weren’t convinced that criminal background checks are a useful tool for candidate selection. “A criminal record doesn’t mean they’ll be good nor not good,” one manager shrugged. “It’s 50-50,” said another. Rather than rely on background checks, these employers spent time getting to know job candidates personally through human-centered hiring processes and practical tests that allowed them to look for qualities they valued. Instead of trying to anticipate and prescreen for every possible risk, they preferred to try people out, starting them at the bottom and moving them up. They did this because they had found that workers with records – like many others whose credentials may not look perfect on paper – are often loyal, hardworking, and capable. They also seemed to grasp something criminologists have long understood: that “crime” is highly time, place, and circumstance-specific, rather than indicative of anything essential.
HR professionals are asked to balance seemingly competing goals – from employee safety and wellness, to legal compliance, equity and access – all the while attracting and retaining top talent. If a hire goes wrong, HR is often left holding the bag. Bringing more workers with records into the mix might seem daunting. Thankfully, there are lots of expert resources available to help businesses build robust Fair Chance hiring practices. Meantime, here are some simple strategies I saw employers implementing regularly:
Reduce the number of positions for which a background check is required, as well as the kinds of convictions that will be reviewed.
Consider other ways of vetting people. Are there ways to engage candidates in practical exercises that can help to assess their skills, personality, strengths and weaknesses?
Question, challenge, and work around barriers rather than simply accept them. Ambiguous legal standards and fear of liability can lead to overcompliance in one area and increased risk or discrimination in another. Investigate the details of barriers you encounter and look for room to maneuver.
Take the mere fact of a person showing up to apply for a job as very good evidence of readiness for work. Given the enormous barriers facing job seekers with records (and especially those who have been imprisoned), their presence tells you much of what you need to know.
We need to let go of the presumption that people with past records are dangerous to employ. Not only is a past record not a good measure of work ethic or character, it’s not a clean indicator of future behavior. Excluding people who want to work from the labor market hurts individuals, families and communities. It’s also bad for business. The millions of Americans with records represent a massive, underutilized talent pool, eager to help build productive and safe workplaces. This is more than a better balancing act, it’s a perspective shift.
By Melissa Burch:
Melissa Burch is an anthropologist whose research and community work focuses on the experiences of people with criminal convictions in the labor market. She is Assistant Professor of Anthropology at the University of Michigan and Directs the Afterlives of Conviction Project.
