On 4/20 and After: Giving Candidates with a Criminal Record a Fair Chance

It’s a question worth considering every day and especially on April 20 — known informally as “the marijuana holiday.” According to a recent report from the United States Sentencing Commission, 97% of “prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.”

It’s also worth noting that people of color tend to be convicted of simple marijuana possession more frequently than others. For example, a Washington Post analysis finds that Black adults are involved in nearly 60% of marijuana-related cases before the Virginia general district and circuit courts, even though Black people account for about 20% of the state’s population.

With demand for workers still high and joblessness still low, and with a global talent shortage expected to persist for years, a dedication to fair chance hiring remains an important goal for employers. 

Fair chance hiring is the act of giving fair consideration to all qualified candidates. It gives people with a criminal record a better shot at landing a job and improving their lives. And they aren’t the only ones who benefit. Companies that hire fair chance candidates are rewarded as well. Research shows that employees with a criminal record are no more likely to be fired than those without a criminal record and are less likely to quit, too, saving employers a significant amount of money in turnover costs. 

Indeed has been committed to providing individuals with criminal records a fair chance at employment since the very beginning — our first employee in 2004 was an engineer who had a criminal record. It’s a journey we’re still on. Most recently, fair chance hiring has become a key focus of Indeed’s Environmental, Social and Governance (ESG) commitment to help 30 million job seekers facing barriers get jobs by 2030 — with the goal of breaking down bias and barriers in the hiring process. 

So how can you promote fair chance hiring and connect to this overlooked talent pool? Here are a few places to begin. 

Acknowledge and Address the Fear 

Put simply, fear is the real barrier that keeps some employers from hiring people with a criminal record, writes Andrew Glazier, the president and CEO of Defy Ventures, a nonprofit that provides entrepreneurship training to those with criminal histories. 

“In my experience, when business leaders and hiring managers balk at hiring people with criminal histories, it is because fear and emotion override rational business considerations that would otherwise drive their decision-making around hiring, even though most people seem to believe in the idea of a second chance,” Glazier explains. 

At the same time, a recent Indeed-commissioned survey found that 92% of employee respondents would be comfortable working alongside a coworker with a nonviolent criminal record and a single, isolated incident. The majority (54%) said they’d be comfortable working alongside a coworker with a violent criminal record including multiple incidents. Yet these unfounded fears or concerns persist.  

Unconscious bias at your company could be keeping you from hiring winning talent. An important first step is to acknowledge and address the fear. From there, explain to decision makers what fair chance hiring is, why it matters and how it can benefit your organization.  

Go Beyond #BanTheBox 

According to the National Employment Law Project, 37 states have adopted “ban the box” policies — a movement that’s been gaining steam for more than two decades. “Ban the box” refers to the checkbox commonly found on many job applications that asks applicants to indicate whether they’ve been convicted of a crime. 

The goal of #BanTheBox policies is to delay any question about a criminal record to the later or final stages of the hiring process so that candidates can be evaluated solely on their abilities for the role. Instead of being immediately disqualified, this policy gives candidates with a criminal record an opportunity to be considered on the merits of their skills and capabilities.

But #BanTheBox should be considered as a starting point. For example, in 2020, the federal government took an additional step by enacting a new law that prohibits federal contractors from asking about conviction records until after giving an applicant a preliminary job offer. This move toward true fair chance hiring goes further than #BanTheBox by regulating when and how employers can conduct background checks. 

Highlight Your Commitment to Fair Chance Hiring

Some job sites focus exclusively on connecting candidates with criminal records to open jobs. Launched in 2018, the platform Honest Jobs is the country’s largest fair chance employment marketplace. Founder Harley Blakeman was driven to start the organization after his drug-related arrest as a teen left the honor student with few employment options. Today, Honest Jobs employs a 20-person team — consisting primarily of employees with criminal records — who connect participating employers with formerly incarcerated job seekers.

It’s also important to make it clear to potential candidates that you’re committed to hiring people with criminal records. Recently, for instance, Indeed made its commitment more visible by adding purposeful language to all of its U.S.-based job descriptions so that any potential candidate knows about our company's commitment. It reads as follows: “We value diverse experiences, including those who have had prior contact with the criminal legal system. We are committed to providing individuals with criminal records, including formerly incarcerated individuals, a fair chance at employment.”

Reassess and Update Your Background Check Processes and Policies

Overly aggressive background check algorithms can automatically filter out candidates with any type of criminal record — regardless of whether it was a minor, nonviolent crime that may no longer be a crime in the state where the candidate lives, such as marijuana possession. HR professionals should examine the parameters they have set with their background check provider to make sure it’s not excluding candidates with arrests or convictions that don't relate to the core duties of the job. Depending on the provider or technology you use, you may be able to adjust your background check features to be thoughtful about what actually matters and what is creating an artificial barrier. 

Beyond your technology, you can also reconsider how you evaluate the results of background checks. For example, in 2015, Indeed updated its background check program to improve best practices for hiring job seekers with a criminal record. One best practice is to evaluate candidates based on the following considerations: nature of the crime, time when it was committed and nature of the job the candidate seeks. Indeed doesn’t look at anything related to criminal records until after making a conditional job offer to a candidate. This means candidates can be evaluated on their skills and abilities for the role. 

Work with Partners to Help You Grow Your Fair Chance Commitment

Many nonprofits and other organizations across the U.S. focus on supporting people with criminal records. Look into opportunities to collaborate with local partners to source, hire and retain this quality talent. National nonprofits such as Jails to Jobs and the Center for Workforce Inclusion focus on career training and job placement for people with criminal records. Indeed partners with the Center for Employment Opportunities and works closely with Banyan Labs, a software development company that teaches, trains and supports job seekers with criminal records and helps them graduate into jobs through on-the-job training programs. 

Being a fair chance employer means implementing scalable practices like those listed above. “Just saying you are ‘open’ to hiring people with criminal histories is not the same as being a fair chance employer,” Glazier notes. 

All people have the right to work. And tapping into the quality but often-overlooked population of people with criminal records is good for employers. By adopting fair chance policies, employers can not only be part of the solution, they can find the ideal candidate for the job.