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When Practice Isn’t Enough: Why Fair Chance Hiring Requires Policy Change

July 21, 2021

At a Glance

To build a truly equitable and antiracist economic recovery, fair chance hiring practices need to be more than just a matter of employer preference. Policy changes, at the state and federal levels, are a critical step in creating opportunities for people with criminal records, and growth for the national economy.

This blog post is the fourth in a series, Making the Case for Fair Chance Hiring.

Fair chance hiring, which expands employment opportunities for people with criminal records, benefits more than workers: It creates a strong talent pool for corporations, reduces recidivism, and even contributes to the country’s GDP. But the path to sustainable employment is rarely easy. As we’ve seen in this blog series, it requires reentry supports for people leaving prison, motivated employers, and buy-in from influential labor and industry groups. However, even those factors aren’t enough to make the practice a national reality.

In roundtable discussions hosted by JFF and The Justice and Mobility Fund of Blue Meridian Partners, corporate and industry association leaders who have successfully led fair-chance hiring initiatives agreed that policy change is essential for opening quality jobs to men and women who have been incarcerated. A top priority is reducing the thousands of rules and regulations known as collateral consequences that bar people with criminal records from many occupations.

As a country we are trying to build back from COVID-19, the resulting economic crisis, and the ever-present racial inequalities that have plagued us from the birth of the nation. If policymakers take the lead and remove barriers to fair chance hiring—including eliminating collateral consequences, creating “clean slate” policies that facilitate records expungement, and supporting “ban the box” legislation that prohibits employers from asking about criminal records on job applications—they can enable the country to rebuild effectively and work toward a truly equitable economic recovery.

This growing momentum across states to mitigate the policy barriers for people with records is an important first step, but this work needs to expand in order to meet the scale of the challenge.

State governments are the dominant decision makers for policies that bar employment for people with records. As a result, there are over 44,000 collateral consequences that prohibit or constrain access to employment or occupational licensure, varying by state, offense, date of offense, and occupation. Our partners in fair chance hiring advocacy identified three key policy shifts that states can make to remove barriers for people with records: changing rules around occupational licensure, increasing access to record-clearing, and supporting “ban the box” legislation.

We’ve already seen the firsthand results of licensure restrictions in this blog series: When Illinois welder Jackie Helm left prison, her dream was to become an electrician, but because of a state law, her conviction made her ineligible for licensure. Helm was lucky; she was able to shift to a new and rewarding career path. Now, the Council on State Governments (CSG) Justice Center is leading a national effort to eliminate policy barriers to acquiring occupational licenses for people with records, so that others like Helm can access a wider range of careers.

Removing Barriers to Occupational Licensure

Since early 2021, 14 states have introduced legislation reducing barriers to occupations requiring professional licenses for people with criminal records and five states have passed laws. “We are witnessing an incredible groundswell of interest from state lawmakers to address barriers to work for people with records,” says said Le’Ann Duran, director of economic mobility at the CSG Justice Center. “We hope to continue to capitalize on this momentum until every state in the country has gold-standard legislation that gives people with records a fair chance to enter occupations requiring a professional license.”

Clean Slate Laws

Another important emerging trend is “clean slate” legislation, which clears criminal records if a person remains crime-free upon release. Thousands of convictions, juvenile and adult, are eligible for expungement. However, the process is complicated, lengthy, and requires a lawyer, making it cost-prohibitive for most. And while many legal aid organizations provide this service, they don’t have the resources to help everyone who asks.

Sharon Dietrich, an attorney with Community Legal Services of Philadelphia (CLS), says that two-thirds of the organization’s employment law clients seek help with expungement, but the process is so onerous that CLS can only handle a few thousand petitions each year.

States have the capacity, advocates argue, to instead do this automatically. The Clean Slate Initiative is a bipartisan policy model that works to automatically clear qualifying criminal records. It has been backed by private foundations and the federal government. In 2019, Pennsylvania became the first state to pass clean slate legislation, a move that helped clear more than 36 million records in the first year. Michigan, Utah, and Connecticut have followed, and the initiative is mobilizing support nationally.

Direct Advocacy

States and municipalities can also pass laws that promote fair chance hiring directly. Tom Kriger of North America’s Building Trades Union (NABTU), which has worked with correctional institutions across the country to help build career pathways for formerly incarcerated workers, says that including fair chance hiring policies in state and local construction contracts can push the practice to become an industry norm rather than an exception.

“Ban the box” policies push employers to consider competency over convictions at low risk to the companies: There is no obligation to hire someone with a conviction if it is relevant to the job requirements. This policy not only expands the candidate pool for employers and the range of opportunities for people with records, but it also has the potential to address some of the entrenched racism in the labor market as long as anti-discrimination laws are enforced alongside it. Research found that some employers resorted to discriminating against all Black people in hiring based on the racist assumption that doing so would avoid hiring people with records.

This growing momentum across states to mitigate the policy barriers for people with records is an important first step, but the work needs to expand in order to meet the scale of the challenge. To fully realize this goal, policymakers must champion legislation that mitigates consequences of convictions and expands employment opportunities for people with records—disproportionately people of color in communities most impacted by the COVID-19 pandemic and the economic downturn.

These policies will ensure that people with records—and their families and communities—benefit from and contribute to our nation’s recovery.

Here are four ways we can build on this momentum:

1. Industry associations can . . .

  • Mobilize employers across sectors or states to join coalitions and advocate for legislatures to adopt clean slate policies and less restrictive licensure policies
  • Track licensure mobility policies to identify where revised policies enable employers to open opportunities in specific industries and help employers develop fair chance hiring and inclusive training practices to ensure that people with records are recruited in the talent pool

2. Employers can . . .

  • Join coalitions to promote state and local policies promoting fair chance hiring and talent development for people with records
  • Expand fair chance hiring practices in response to policy changes (such as removing conviction questions on applications in response to “ban the box” policies or expanding outreach to people with records when collateral consequences are removed)
  • Provide professional development on fair chance hiring for human resources personnel and hiring managers through tools like the Getting Talent Back to Work certification to ensure that commitments to fair chance hiring are met
  • “Get proximate” with programs that train people with records to see firsthand the talent that people with records have and to connect with new and diverse sources of talent

3. Education and training providers can . . .

  • Make sure they understand collateral consequences and support efforts, like the Clean Slate Initiative, that expand opportunities for program participants with records
  • Immediately expand recruitment and access to education and career training models—like career pathways, social enterprise, pre-apprenticeships, and apprenticeships—for people with records, as barriers to occupational licensure are removed
  • Ensure that case managers educate participants about expungement and resources like the Clean Slate Clearinghouse and connect participants to legal support for expungement processes

4. Public and private funders can . . .

  • Invest in organizations with track records for advocacy on policy changes that open education and employment opportunity to people with records (especially organizations that are led or directed by impacted individuals)
  • Advance, through investments, organizations and initiatives that promote racial and economic justice and work to change narratives that functionally exclude people with records from employment and perpetually criminalize poverty

This work was generously funded by a grant from the the Justice and Mobility Fund at Blue Meridian Partners. The Justice and Mobility Fund is a collaboration launched by The Ford Foundation and Blue Meridian Partners with support from the Charles and Lynn Schusterman Family Philanthropies.


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