Editor's note: This is an installment in a two-part series on hiring the formerly incarcerated. Read the companion story here, an inside look at learning job skills in prison. 

After Adam Garcia was laid off at the onset of the pandemic, he was painstakingly organized in his new job search. He identified ideal qualities in a company and in a job, he applied to ten jobs a day, and he researched and wrote briefs on his target companies to understand what they might offer in the way of a career. Garcia made it to the interview rounds, often final interviews. “But as soon as the background check comes up,” he said, “then I noticed demeanors, tones change, and doors are closed with very vague reasons. ‘We don’t think it’s a good fit. You just don't have any experience.’”

He knew what was happening. The prospective employers were discovering that he had a criminal record. In fact, Garcia had served a nearly 20-year sentence. “They’re getting a side of the story based upon what's said on a piece of paper,” he said, and not a picture of who he is now.

Garcia decided to change his approach. He recalled that in the interview for his first job after incarceration, the conversation had, by chance, given him the opportunity to talk about his record. “I was so nervous,” he said. “Laying it all on the table. [The interviewer] was shocked, to say the least. He contemplated for three minutes–this weird, uncomfortable silence for three minutes. He just said, ‘You know, what? The hell with it. I'm going to give you a shot.’”

So this time, rather than wait for the background check, he started proactively disclosing his record to potential employers. It made a difference. “When I pivoted my strategy to approaching it like that, that’s when the tone started to change. The companies that happened to reach out were actually companies that I was able to be vulnerable with.” After moving the background conversation to the beginning of the process, getting it out of the way so employers could focus on his skills and qualifications, Garcia ended up with six job offers. He accepted a job on the customer-experience team at Checkr, a company that performs background checks.

Garcia’s experience is emblematic of an increasingly open conversation about hiring people who have been incarcerated, driven in part by the economic necessity of tapping a huge prospective labor pool. More than 70 million Americans have a criminal record and 8 million have served time in prison, according to research by the Brennan Center for Justice. Yet a confluence of company policies, legal restrictions, and discrimination prevent capable people with criminal records from getting jobs.

Now many employers have begun to play a significant role in removing barriers to employment for these prospective workers, both within their organizations and in the U.S. overall. “Government policies are necessary, laws are necessary,” said Beth Avery, a senior staff attorney at the National Employment Law Project (NELP). “But I think you’re going to get the broadest change if employers are going along with it too.” Not only is it the right thing to do in terms of social justice, but this is a talent pool that’s diverse and qualified, said Michelle Kuranty, executive director and head of talent acquisition sourcing at JPMorgan Chase, which has adopted a policy of giving people with criminal backgrounds a second chance. “As the country continues to recover from the pandemic, businesses are adapting to economic conditions and resuming their search for skilled workers,” Kuranty told From Day One. “By reducing barriers to employment for justice-involved individuals, we will be able to get more people back to work more quickly.”

This represents a sea change for corporate America, where barriers to employment for people with criminal records are so great that many are forced to look elsewhere. “When individuals tend to come home and get jobs, it’s at small businesses or they become entrepreneurs,” said Keesha Middlemass, an associate professor of political science at Howard University and author of Convicted and Condemned: The Politics and Policies of Prisoner Reentry. “And most of these small companies are created by people who have been affected by the criminal justice system.”

A Crippling Level of Unemployment

In the U.S., the unemployment rate for formerly incarcerated people is almost five times higher than that of the general population, according to the Prison Policy Initiative. The rate for formerly incarcerated people is 27%, which, the organization says, is “higher than the total U.S. unemployment rate during any historical period, including the Great Depression.”

Unemployment is even higher at the intersection of criminal record and race, and highest at the intersection of criminal record, race, and gender. Formerly incarcerated Black women have an unemployment rate of 43.6%, the highest of any demographic slice. NELP’s Avery points out that barriers to hire are rooted deeply in racism. “Our criminal legal system over-criminalizes populations of color. Black people, Latinx people. So those folks have way more records, and then we see studies that when people of color have records, they’re also punished more harshly for having those records.”

The current labor shortage makes the opportunity gap even more stark. In December 2021, Reuters reported that there were 11 million open jobs in the U.S. Besides the 70 million Americans who have criminal records, NELP estimates that 700,000 people are released from incarceration every year. “It’s an untapped workforce,” said Middlemass.

The Movement to ‘Ban the Box’

A common obstacle in the application process is the checkbox that asks applicants if they have a criminal record, or “the box.” The Ban the Box campaign calls for for public- and private-sector employers to strike the question from applications. “The theory behind Ban the Box is that people will have an opportunity to introduce themselves, to demonstrate that they are worthy of being employed,” said Middlemass. “They're worthy of doing the job. They have the skills to do the job. They can present themselves versus an automatic rejection.”

So far, 35 states have banned the box for public sector jobs, and many private employers have jumped on board, according to NELP. This practice may prevent candidates from being disqualified at the application stage, but it does not prevent an employer from running a background check later in the hiring process.

Evidence suggests that banning the box is effective. The City of Durham and Durham County in North Carolina banned the box in 2011 for city and county positions. Between 2011 and 2014, “the proportion of people with criminal records hired by the City of Durham increased nearly sevenfold,” according to the Southern Coalition for Criminal Justice. The organization also reported that “96% of Durham County applicants with criminal records, who were recommended for hire prior to the criminal record check, were ultimately hired after the results of the record check revealed some criminal history.”

Even so, Middlemass is skeptical about that change being enough to sufficiently remove bias from the hiring process on a large scale. She believes that many companies need to take an even harder look at other early-stage filters that discriminate against applicants. For example, one study found that even “employers who do not conduct background checks are likely to avoid specific groups–namely, undereducated Black men–because they stereotype them as ex-offenders.”

“If companies really want to make a difference,” Middlemass said, “what they need to do is change their [applicant screening] algorithm, but also connect the person and what they’ve done since they've been released from prison. Make the time to figure out, when there is a crime, what is the connection between the crime and the job?”

For companies that want to remove barriers, banning the box is a good place to start. “That's the most obvious. That’s the low-hanging fruit,” NELP’s Avery said. “That’s the thing that’s screening people early in the process, so you get rid of that. That alone is not going to solve the problem.”

Redesigning the Evaluation Process

How can employers change the way they evaluate candidates? Andrew Glazier, the president and CEO of Defy Ventures, a nonprofit that runs entrepreneurial and job-skills programs for formerly incarcerated people, as well as training employers on fair-chance hiring, recommends the “nature/time/nature” framework. In this process, the employer considers the nature of the crime, the time elapsed since the crime, and the nature of the job, said Glazier.

Eaton, the industrial power-management company (total employees: 85,000), uses a system like this, said Stan Ball, the company’s VP and chief litigation counsel. He said that candidates are not asked to disclose criminal history during the application process. If a conditional offer of employment is made, a third-party agency runs a background check. The agency searches the previous seven years and looks only for crimes that may be related to the position. “And even at that point, it’s not an automatic dismissal,” Ball told From Day One. “There is a conversation that will happen between the site HR manager and the particular job applicant to make sure it's an individualized decision.”

Ball stressed that no particular offense disqualifies a candidate. “What matters most to us is that we have an individualized, intelligent assessment of whether or not the particular offense actually even relates to the job issue.”

Reconsidering the Liability Issue

Many potential employers believe people with criminal records pose a larger risk to an employer than those who don’t, said Middlemass, who argued that all employees are a potential liability to an organization, regardless of criminal history, and that this is a calculation employers must make of all workers.

Candidates with criminal records tend to carry the burden of proof that they will not be a liability, but it’s difficult to prove a negative, of course, and Avery believes the responsibility should be flipped. “The employer needs to be able to show that a person's record is truly indicative of a likelihood of something happening, something being recent and relevant, before they’re screening someone else because of their record.”

In fact, data indicates the employees with criminal records in some cases fare better than those without. A study of 1.3 million military enlistees found that ex-felons are promoted more quickly and to higher ranks than other enlistees. Another found that this demographic has much longer tenure and are less likely to voluntarily quit their jobs. Research at Johns Hopkins Hospital found ex-offenders have lower job turnover than non-offenders.

Changing the Legal System

Despite changes to employer policies, laws can still get in the way. In the heavily regulated financial sector, parts of the Federal Deposit Insurance Act prevent companies like JPMorgan Chase from hiring the candidates they’d like to.

The company has been vocal and proactive about its support for fair chance hiring. In April 2021, the banking company was a founding member of the Second Chance Business Coalition, whose members commit to fair chance hiring practices and policies. JPMorgan CEO Jamie Dimon and Eaton CEO Craig Arnold serve as co-chairs for the group, which includes dozens of household names including AT&T, McDonald’s, and Walmart.

JPMorgan endorsed the Clean Slate Act of 2021, which would create a record-clearing process and automatically seal some records of low-level crimes. Eaton, too, has challenged legal structures. Arnold is a member of the Business Roundtable’s subcommittee to advance racial equity and justice, which, among other things, identifies and promotes criminal-justice reforms and the removal of barriers to workforce reentry. Eaton’s Ball said the company rallies its corporate neighbors in Ohio, where the company has deep roots, to join the effort. “Can we get folks who have been on the bench historically–can we get them back in the game?”

Garcia, who now works for Checkr, said he wishes employers had a better understanding of the criminal-justice system–how it works, what it means to have a criminal record, and how easy it is for anyone to make mistakes that entangle them in the system.

How to Get Started With Systemic Change

Overhauling talent-acquisition practices to include fair-chance hiring can feel daunting, according to one person helping to lead the process, Jen Gudgel, global director of diversity, equity, and inclusion for automotive supplier BorgWarner.

Gudgel, who acknowledges that she is new to fair-chance hiring, is moving enthusiastically with the support of leadership behind her. She began by building an internal task force and studying second-chance hiring practices, which included taking the Society of Human Resource Management’s Getting Talent Back to Work course. Next, her team created a communication plan to educate HR leaders on the vision for the project and worked with their legal team to review hiring practices, which vary by state according to local laws.

Gudgel said the hardest part, at this point, is helping her colleagues understand this isn’t an initiative that will produce instant results. “How do I get from where I am today to where they are?” she said of other companies further along in the process. “What we’ve realized is we just have to take the first step, and then we’ll take the next step.”

Emily McCrary-Ruiz-Esparza is a freelance reporter based in Richmond, VA, who writes about workplace culture and policies, hiring, DEI, and issues faced by women. Her work has appeared in the Washington Post, Fast Company, and Food Technology, among others, and has been syndicated by MSN and The Motley Fool.