Legislation & Initiatives: Second Chance Initiatives and Background Checks Series, Part 2

March 12, 2020
By Mary Ann Saenz-Thompson, SPHR, SHRM-SCP, TAC Human Resources Generalist
Risk Management News

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This is part two of a four-part series on second chance initiatives and background checks. The first article examined labor shortages and reasons for job vacancies in local and state governments.

Legislative movement and initiatives

Recidivism is defined by The National Institute of Justice, a Department of Justice agency, as a person's relapse into criminal behavior and is measured by criminal acts that resulted in re-arrest, reconviction or return to prison with or without a new sentence.

The National Association of Counties (NACO) published in its 2016 policy research paper series, Second Chances, Safer Counties, that recidivism is a substantial economic issue facing counties not only because of impacts to the local labor market and workforce, but also because of counties' central role in public safety, jail maintenance, inmate care, and administration of the criminal and juvenile justice systems.

There is an untapped labor pool, equating to three in 10 adults in the United States, or an estimated 75 million, who have some form of a criminal history record. According to the Society of Human Resource Management (SHRM), more than 650,000 people are released from prison every year with 75% of them remaining unemployed a year after release. SHRM also estimates that 7.2 million jobs will need to be filled in 2020 and maintains that employers will need to diversify their talent pool to meet labor shortages.

There has been recent legislative movement and initiative at the federal and local levels with goals to prevent crime, facilitate successful re-entry into the workforce, and reduce recidivism.  In December 2018, Congress passed the bipartisan First Step Act. It reduces prison sentences for non-violent federal offenders, and seeks to reduce the rate of recidivism and improve workplace readiness programs. Another federal initiative is The Fair Chance Act of 2019, which passed out of Congress on December 19, 2019, and was signed by the President on Dec. 20, 2019, as part of the 2020 National Defense Authorization Act, which prohibits federal agencies, federal contractors, employees of the judiciary who are not judges or magistrates, and the legislature from asking applicants about their criminal history until a conditional offer of employment is extended.  Finally, the Department of Labor recently awarded $85.9 million in Reentry Project Grants to 501 (c) (3) organizations in rural and urban high-crime, high-poverty communities to help formerly incarcerated youth and young adults find gainful employment.

As of July 2019, more than 150 cities and counties, including the city of Austin, and 34 states have passed "ban the box" laws and ordinances. "Ban the box" initiatives prohibit employers from asking certain criminal history questions at various times during the interview and selection process. This initiative removes questions from job applications and pushes background checks to a later point in the hiring process so that an applicant’s qualifications are considered without the stigma of a criminal history conviction.

SHRM's initiative:  Getting talent back to work

After the First Step Act was signed into law by President Trump, SHRM kicked off a national initiative called Getting Talent Back to Work, which includes a toolkit and pledge. The goal for this initiative is to end non-inclusive hiring practices preventing individuals with criminal histories from getting a fair chance of gaining employment. As a result, associations and companies representing more than 60% of the U.S. workforce are committing to change their recruiting efforts according to Johnny Taylor, CEO of SHRM.

A nationwide study conducted by SHRM and the Charles Koch Institute found that 82% of managers and 67% of HR professionals believed that the workers with criminal histories were a quality hire at an equal or higher level than workers without criminal histories. Top concerns found in this study were ambivalence towards hiring those with criminal history records due to concerns about legal liability and customer reactions. SHRM has provided information and tools for employers to help better evaluate an applicant's record, reduce legal liability and increase the amount of new hires with criminal histories when appropriate.

Conducting Background Checks: Second Chance Initiatives and Background Checks Series, Part 3

For further information on these or other topics, please contact your assigned TAC HR consultant.  It is recommended that you additionally consult your county attorney or other legal counsel. Recommendations and information provided are based on current information in the field of Human Resources.  This information is not intended to be, nor should they be construed as, legal advice or legal guidance.