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Background Checks and Fair Chance Hiring

It’s no secret that hiring justice impacted individuals can be a way to promote Diversity, Equity, and Inclusion (DE&I) in the workplace. Giving someone a fair chance can have an incredible impact not only on the person him/herself, but also the employer and the communities they operate in. However, no matter how much an employer is bought into fair chances, quality candidates are still getting “stuck” when the background check comes into play.

To effectively use background checks, employers must balance the need for a safe workplace environment with the goal of giving individuals who have experienced the criminal justice system a fair chance at employment. Below are a few ways that employers can navigate this process effectively:

  1. Understand Relevant Laws: Employers must familiarize themselves with the laws and regulations in their state regarding the use of criminal records in hiring decisions. Colorado is a “Ban the Box” state that restricts how and when you can inquire about an applicant’s criminal history.
  2. Individual Assessment: Each candidate is an individual, so their qualifications, skills and experience should be assessed before considering their criminal history. Employers should ask themselves what value this individual can bring to the role they are applying for. This also helps avoid automatic rejection based solely on past criminal convictions.
  3. Nature-Time-Nature Test: Employers should consider the nature of the conviction, the amount of time that has passed since the conviction, and the nature of the role. This helps evaluate whether the past conviction is directly related to the responsibilities of the position the individual is applying for. For example, if an individual has a financial crime, they may not be a good fit for a position handling sensitive financial data. Older crimes may be less relevant, especially if the individual has shown positive behavioral changes and rehabilitation since then. 
  4. Rehabilitation and References: Consider whether the candidate has engaged in rehabilitation programs (which also shows an investment in him/herself) or can provide references attesting to their skills and experience, but also their personal growth and development.
  5. Transparency and Communication: If a background check is going to be completed upon a job offer, inform candidates about this early in the hiring process. This provides them an opportunity to explain their criminal history, the circumstances surrounding the offense, and how they have changed since then.
  6. Individual Interview: Conduct an interview that focuses on the candidate’s skills, qualifications, and overall fit for the job. Make sure their experiences, accomplishments, and aspirations are discussed in order to get a better understanding of their potential and value they bring to the company.
  7. Risk Assessment: If concerns arise from the background check, assess the level of risk involved and whether any accommodations or conditions could be put in place to mitigate that risk.
  8. Review Internal Policy: Develop a clear and consistent policy for handling candidates with criminal histories. Ensure that the policy aligns with your business or organization’s values and goals, and that is applied fairly to all applicants. If necessary, consider adjusting outdated policies that could impact your ability as an employer to hire from this population of candidates.
  9. Legal Consultation: If you’re still unsure about the legal implications of your hiring practices, consider consulting legal experts who specialize in employment law. 
  10. Work Opportunity Tax Credit (WOTC) and Federal Bonding: Run by the Colorado Department of Labor and Employment (CDLE), the Work Opportunity Tax Credit (WOTC) can reduce a businesses tax burden by up to $9,600 each time they higher a formerly incarcerated person. Accessing WOTC requires an employer and employee to complete two simple forms prior to a job offer, which must be submitted to CDLE within 28 days of start of employment. For more information and to access these forms, employers can visit cdle.colorado.gov/wotc. Additionally, any employer who is concerned about hiring formerly incarcerated individuals may acquire a Federal Bond against an employee for losses through theft of any kind of up to $5,000. Formerly incarcerated employees may also initiate the bond process as leverage to be able to demonstrate to employers the value of hiring them. Bonds are issued by local workforce centers, who will support the employer or employee in the issuance of the bond. Find your local workforce center at cdle.colorado.gov/wfc.
  11. Monitoring and Support: After hiring, providing ongoing support and opportunity for growth. This is also an opportunity to partner with a local Community Based Organization (CBO) to not only identify the best candidate for the positions you have open, but also to provide wrap-around support services to contribute to their positive reentry into the workplace and their communities.

Breakthrough works with employers not only to help shift societal perspectives, but also highlight the value in hiring from this untapped population. In February 2020, Breakthrough commissioned robust research to build its capacity to support employers wishing to launch or strengthen their fair opportunity hiring practices.

Through interviews with 17 established fair-opportunity employers and analysis of existing research, Breakthrough identified several best practices to help employers hire and retain fair opportunity talent, which can be found in our Fair Opportunity Hiring toolkit. Additionally, Breakthrough works alongside employers to help identify candidates for positions they have available, also providing critical wrap-around support to help our graduates in the community be successful in the workplace.

Remember, the goal is to make informed decisions based on a holistic assessment of the individual, rather than solely looking at their criminal history. This approach not only supports justice impacted individuals in their reentry to society, but also enriches your workplace with diverse perspectives and experiences.

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