Wendy Gilbert and Brandon Laws of Xenium HR discuss people with criminal records re-entering into the job market and what it means for employers and society, in general. They also discuss the new Ban-the-Box law in Oregon effective 1/1/16 and what employers should do in response.
New development specific to Portland, Oregon as of 11/25/15: Stricter rules effective 7/1/16 won’t allow employers to ask about criminal background until after job has been offered. Read more here.
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Brandon: Welcome to the HR for small business, this is your host Brandon Laws. I’m with Wendy Gilbert, a first time guest, she’s on the HR team at Xenium and has a tremendous background in recruiting, talent acquisition, you name it. Wendy, welcome!
Wendy: Thank you! I’m very happy to be here.
Brandon: So today, this is a topic that you’re passionate about, you actually presented on to the internal team and we were like, Wow! What an awesome topic. We’re talking about reentry into the job market, second chances, and Ban the Box which is pretty new to Oregon, I know other states are starting to do this. So let’s kind of go through and you’re going to give us a nice overview, I’m sure, as to what this whole topic’s all about.
Wendy: So what this whole topic is about is, starting on January 1, 2016, they’re having Ban the Box go into place, which means you cannot ask on the job application if somebody has a criminal background. So typically, and this has been in place for as long as I can remember, people ask, Have you had a felony conviction in the last 7 years? The problem with that is that people who have had that are usually immediately dismissed, they can’t even come to the table. And so now what Oregon is doing to help those people reenter back into society in more productive and positive ways is taking that off the application. So you can still ask that, but you’re asking in the interview. So it gives them a chance to come to the table, which they didn’t have before.
Brandon: …and prove themselves. So you’re basically saying that in the application process, they check the box, they’re automatically filtered out through applicant tracking systems, and even if people are manually going through resumes or applications, they’re seeing that box being checked and pushing them off to the side.
Wendy: In the garbage can or off to the side, they’re not even going to consider them.Brandon: Do you think that once it gets to the point where they’re in the interview and that question does come up, that it could be awkward?
Wendy: Very. And I think it’s often more awkward for the interviewer, where the candidate coming to the table knows it’s a question that’s going to come up.
Brandon: They’re used to it.
Wendy: And usually at that point they’ve already marked in the application. If they get an interview, they know that this person has usually seen it. Or, the worst awkward moment where they haven’t seen it and they have that moment where the interviewer goes Oh! I just saw this. And it’s even worse, because they know, usually by the person’s face, that it’s kind of over.
Brandon: So I want to come back to Ban the Box. I want to talk about the bigger issue here, the “reentry” issue. Of the people that are currently incarcerated, how many people actually end up coming back into the community to the productive community? Like, they’re out and they want to get a job. How many of those people would come back into the community?
Wendy: The majority!
Brandon: Yeah, that’s what I’d think.
Wendy: Reentering into society and having a job is the most significant factor of where their life goes after serving their time in prison. Or sometimes not even prison, sometimes just having the felony conviction and then rebuilding after that.
Brandon: Exactly.
Wendy: So right now nationally there are 2.3 million people currently incarcerated. When I heard that number, it blew my mind!
Brandon: That’s a huge number.
Wendy: That’s twice the size of Portland that are currently in the prison system. So that’s a population that cannot be ignored. No matter what your opinion is, you cannot ignore this population. Of those, 700,000 will reenter society this year alone. Just this year.
Brandon: Wow. So a lot of these are shorter prison sentences then?
Wendy: Exactly. And 31,000 people are currently under supervision in the community, meaning they’re on parole, they’re on probation, they could be in their own homes, they could be in halfway houses. And the amount of people that are currently incarcerated has grown so much as the drug problem continues to grow in our society. So these things have direct cause-effect relationships.
Brandon: Absolutely.
Wendy: So really what it comes down to is that right now, 1 in 4 people has a criminal record.
Brandon: That’s a lot higher than I would’ve thought.
Wendy: 25% of our population. So when you’re counting out people, as an employer, who have a criminal record, you’re counting out 25% of the population without even taking into account their skillset.
Brandon: It’s incredible. So to your point, I think this poses a bigger issue, right? So people are reentering, looking for jobs, what do you think this could do to our community i
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f these people don’t get jobs again and employers ignore the fact that they might have skills that they’re actually looking for?
Wendy: Well, if they’re not able to support themselves, they have to find money in some way. And a lot of the time people with records are not even eligible for any kind of assistance or any kind of public assistance. So they have to make money, they have to eat, and they’re not eligible for food stamps, they’re not eligible for any kind of housing assistance, all because of this. Unemployment is the biggest determinant of recidivism, of committing another crime and going back into the system. So basically by having even just that one crime, if you don’t have all of the right things in place and everything lined up, it’s almost like a slide right back into the system and you become systematized, it becomes a cycle. In Oregon, 93% of those incarcerated will reenter the community this year. We have 2.3 million people currently incarcerated, 700,000 reenter society. In Oregon, 93% of the people currently incarcerated are going to reenter the community at some point.
Brandon: That’s a huge number. When you consider that employers are filtering these people out as they come back in looking for jobs, that could pose a big issue as far as criminal activity. You talked about the recidivism issue where they would commit a crime and just be back in the system.
Wendy: Right, so that increases crime in the neighborhoods! They’re having to find money and a lot of the times it’s the last resort. That’s when they’re going back to selling drugs, they’re going back to theft, they’re going back to robbery, sometimes violent crimes because they’re needing. You say ‘make a living’ in the grandest definition possible, but people need money to live. So these people are coming out of prison and your political opinions aside, the fact of the matter is that people are coming out of prison, they’re now not eligible for any kind of public assistance, they’re being discounted for most jobs out there, they’re not even getting a chance to come to the table, so all that’s doing is increasing crime all around for society.
Brandon: Yeah. There’s definitely a bigger issue at play. So what I want to ask you is, of the people who come out, what is the likelihood that they could beef up their resume somehow, maybe get some experience if they can, to show employers, Hey, I’m on the right track, I want to be productive again, give me a chance? What are the chances that, for one, employers will give them that chance, from the very beginning of the acquisition process?
Wendy: The chances are low. It’s about finding the right employer to, in fact, give them the chance. They’ll even use that language of “give them the chance.” I actually had this situation this morning where we have somebody working as a temporary worker for one of our bigger employers, a bigger account of ours here, and this person’s been working as a temp for seven months and now they want to hire them on full-time. We did a criminal background check and we found quite the record. Drug-related and related crimes, mostly probably because of the drug problem, and it was quite the list. And it was from several years ago, but not quite seven years ago, so it absolutely came up. And it became a bigger conversation and it became about what’s his performance on the job, and so he had to jump through a lot more hoops.
Now, he committed a lot of crimes. There’s a lot to pay back. And again, people have opinions, left and right, all over the place. But here is a person who is trying to do the right thing, who has kept his nose clean seven months on the job. And they did decide to give him a chance.
Brandon: Good for them. I can see where a lot of employers look at it and say, and the reason they do these checks is they want to know if the past is any indication of the future.
Wendy: Right, absolutely.
Brandon: They want to mitigate their risks long term. And so I totally get it, and I think there’s a balance, employers still have to figure out if it’s worth the risk or not. With a long risk like that, you never know if he’s going to, I don’t know if it’s a he or she, but if that person’s going to have another issue that’s going to bleed over into the workplace, it’s going to be an issue.
Wendy: And, you know, I think that every time you make a hire, it’s a risk.
Brandon: Absolutely! I couldn’t agree with you more on that.
Wendy: You do the best you can with interviews and in the background checks. But every time you hire somebody it’s a risk. Somebody could have an absolutely clean record. And you see this all the time, unfortunately, with things like childcare where they do every background check, they do reference checks, they do everything they possibly can, and then somebody commits some horrible offense. And of course then the employer gets sued. How could they see it coming? How could they know? They’ve done everything they can!
Brandon: Reference checks, background checks, you name it.
Wendy: And the person doesn’t have a record, they haven’t had a record. Now what’s interesting is that people absolutely can have success. There is now, with more information, becoming some predictability in the matter. I attended a really great Portland Human Resource Management Association breakfast a few months ago and the HR team and the legal team for Dave’s Killer Bread presented. Now they are very well known for hiring people for second chance employment, helping people reenter into the
workforce, and they had a really great program. They came out and said that there are really five indicators of success that they’re finding are pretty consistent. The first one is that the person has received, in prison, cognitive behavioral therapy. So I don’t know if you know this, but before my career in HR I was actually a therapist for 10 years.Brandon: Did not know that!
Wendy: So I am very familiar with cognitive behavioral therapy. And what that does is really work with people on taking responsibility and ownership for what their situation was. And then also working with them to give them the coping skills and coping mechanisms going forward that can help them make better decisions. A lot of the times people make bad decisions because they can’t cope with what’s going on in the moment, whatever that might be. So to give them those skills and practice those skills with them going forward, and it’s not the Freudian stuff, it’s not necessarily going back and looking at Oedipal complexes or anything else, it’s real life, in the moment type stuff.
The second is if they received drug and alcohol treatment during their incarceration period—of course, if they had a drug problem.
Brandon: That would mean they were incarcerated because of a drug problem.
Wendy: Right, and it would make sense. Sometimes it could be because they were incarcerated for robbery, but they committed robbery because they had a drug problem. That is really key. It’s also in a place where they can’t leave, they can’t escape it, they can’t decide to not do it, it has to happen. And the professionals are used to working with people in that environment. And for a lot of people that is the rock bottom, being in prison, so that is their place to really pay attention and really be open to receiving that treatment.
The third thing is, in coming out of prison, is having housing.
Brandon: Especially if you don’t have family or friends willing to take you in.
Wendy: Or you’re going back into an environment where people are committing the same crimes that you committed. There are a lot of social workers and probation officers in place to help set up housing or if people maybe have limitations, if they are a sex offender in some way and can’t be near a school, making sure that they have adequate housing.
And then the fourth thing is support systems. People, all of us, need to have support systems in place in order to be successful in life. None of us operate in a vacuum and none of us do this alone. We really need to have people around us who want us to be successful. And it doesn’t have to be your natural family, it could be the people that you choose to be your family. Sometimes it’s people at work, sometimes it’s just people that you pass on the street that say “hi” to you every day, those things can be really meaningful. But making sure that people have the proper support systems for the reentering that they need so they can cope and they can use their skills and they can bring all these things together.
And the fifth, which is really the biggest, is employment. This statistic that I heard at this breakfast really blew me away, that each day a person is out of work, it increases their chance of recidivism by 2%.
Brandon: Day!?
Wendy: Each day.
Brandon: That’s incredible.
Wendy: People do better when they have a sense of purpose. When they have a sense of responsibility, they have a sense of purpose, they have a sense of meaningfulness in their life. They have a direction. We always talk about keeping kids in school and keeping kids in after school programs and things to make sure they have direction.
Brandon: So they’re not getting in trouble after school.
Wendy: Exactly! It’s that downtime when nothing’s going on, that’s when kids tend to get in trouble the most, typically 3-6pm. It’s making sure that each day, this person has a job, they have a purpose, they have something to go do, they have structure.
Brandon: So I want you to restate this. Dave’s Killer Bread, very successful in hiring, getting people who were previously incarcerated back into the job market.
Wendy: Absolutely.
Brandon: They have five indicators for what are likely going to be successful for people when they’re reentering the job market. What are those five success things again, just real quick?
Wendy: Five indicators of success: the first one is cognitive behavioral therapy received during incarceration, drug and alcohol treatment received during their incarceration period, and when they come out it’s having housing, having proper support systems, and the biggest one, which is employment.
Brandon: Awesome. I just think that for employers who are really willing to take that chance, having those success factors that another company’s used and it’s benefited greatly for them, so I think that could be helpful for listeners.
Wendy: Absolutely. Dave’s Killer Bread says that about 50% of their workforce right now are people who have previous criminal records. It’s pretty incredible. And we all know how successful they are! They’ve recently gone national, so good for them!
Brandon: So let’s go back to Ban the Box. Oregon issue right now, so this is a January 1st effective date?
Wendy: Yes.
Brandon: Okay, and then explain exactly what Ban the Box is, what employers really need to think about from this new law?
Wendy: So what Ban the Box is is that you can’t ask on the application whether or not somebody has had a felony conviction in the last 7 years.
Brandon: And that’s just a checkbox, right?
Wendy: Usually it’s a checkbox and If yes, please explain. That’s what you see most of the time on applications. Oftentimes, and I’ve seen it myself as a recruiter, I’ve been instructed to do this as a recruiter if there’s a blanket policy, if somebody checks yes, we don’t even consider them. I want to make sure I point out that that’s not the case here, I’ve not been a recruiter at Xenium, this is from experience at other companies I’ve worked for.
Brandon: But I’m going to assume that most employers are practicing that.
Wendy: Absolutely.
Brandon: And that’s why this law is probably coming into effect, because they want to be able to give people who were previously incarcerated a chance.
Wendy: And it makes such a big difference. I worked in staffing for a while and a lot of my anecdotes about this really come from my time in staffing. I saw so much. I saw people who had had a career and been successful and had made some poor choices and did their time. And maybe did things that were over and above what was mandated for them and still couldn’t get a chance. One of the stories that really stands out for me is when I was working staffing. I am staffing light and industrial positions, lower-level office positions, and a gentleman comes in and he used to be a registered nurse. He was a successful nurse, and during that time he got diagnosed with cancer. So he was going through treatment, and in his treatment in that course he became addicted to pain pills, which we know is a more and more common story these days. He made a bad decision and he stole pills from work. He got caught, he lost his nursing license, he lost his job, and with that he not only completed treatment, but he did other programs and other community
service as well. He came into the staffing agency saying, “I just need something. I was a supervisor, I was a nurse. I understand I can’t work in that field again.” He accepted his circumstances and the consequences of his actions. He was working in a food processing plant and he was extremely unhappy.Brandon: It wasn’t the right fit for him; probably wasn’t his calling, is my guess.
Wendy: Not even close, and he was really open to almost anything. And he had a lot of skills. And working in staffing and working with probably about 30 different employers that day looking for positions for him, I didn’t have a single one for him. Not a single one for him because they all had blanket policies that if they had a felony conviction, they didn’t want to talk to them. And I think that if this guy had a chance to come to the table and they talked to him—
Brandon: In an interview process.
Wendy: Yes, in an interview process or even just shook his hand, they would’ve seen what I saw. And this wasn’t with, what I call, like a liberal bleeding heart. This was a person who was well-dressed, presented well, spoke well, was honest and open about his situation, and could not catch a break, even though he had done above and beyond what he was mandated to do.
Another story that stands out for me where it was a young man who came in and he had amazing computer skills. He had really great computer skills. And he was up for a computer programmer position that would have been a great fit. He went through all the assessment tasks and everything. In the first half of the interview he slipped through the cracks and it wasn’t his own fault, it was an internal mistake. He was upfront that he had a felony conviction and he was passed through anyway even though the employer said nobody with a felony conviction. So he went through the whole thing. And then I’m getting to the point where I’m doing his new hire paperwork. He scored in the top 1% of everybody testing for this job!
Brandon: Incredible!
Wendy: And I was going through this, saying, “Okay! So no felony convictions?” And he said, “Oh no, I do.” And I’m like, “You do?” And he said, “Yeah.” My heart sunk. I had to tell him, and he actually had a felony conviction for possession of marijuana.
Brandon: Oh my. As we know now…I assume this was in Oregon, too?
Wendy: It was in Oregon and it was quite a few years ago. I think about him a lot still, and his face. You could tell he thought he finally had something and he really wanted to do well. He presented so well, and I had to tell him, “I’m sorry.” I couldn’t even bring it to the employer. I kind of just watched him walk outside. He held it together, and when he got outside the door he broke down. He was just sobbing crying. And then he just took a deep breath and picked himself up and just walked on. His hopes got up, it was a really tough situation.
I think a lot of people, when they think about people who will be positively affected by the Ban the Box, they’re thinking about the people who may have been in and out of prison for a long time, for years, and that it will be all of these lower skilled jobs and they’ll make it. My opinion is that it’s going to gravitate up. You’re going to see more people in higher-skilled positions and they’ll be your coworkers and you won’t know, hopefully, that they have these criminal backgrounds because they made a mistake, whatever the circumstances, and they’ve done their work.
And also, with the five indicators of success, going back, there are some people who wind up with a felony conviction and end up in prison or maybe they’re suspended but now they still have this conviction, they might not have even been eligible for cognitive behavioral therapy or drug and alcohol treatment. So it’s possible that people with lower level offenses, just because they don’t have these things it could mean that they didn’t qualify. So that also should not necessarily be held against them, it should be looked at together as a whole picture, a whole package.
Brandon: It’s a holistic picture, yeah. I could imagine that employers looking at this Ban the Box law that’s going to take place like, Okay, what do I do? I’ve got to change my application obviously…where can they start to have this dialogue about having a criminal background history? I’m sure there’s specific parts of the recruiting and hiring process where they can have that open dialogue, is it at an interview, a phone screen, where is it?
Wendy: It’s in the interview.
Brandon: And how bluntly can they ask the question?
Wendy: You should ask.
Brandon: Get it on the table and give them a chance to explain.
Wendy: So, I don’t think it should be your first question upon sitting down. I don’t think that exactly creates a rapport you’re looking for in any interview. Hopefully when you’re going into an interview as an employer and you’re interviewing a candidate, you’re having a set list of questions already. And it makes sense to have that in your set list of questions. I don’t think it should even necessarily be your second or third question, but I think it should be in that list. And you can say, “Have you had a felony conviction in the last seven years?” And the whole point of the law now is that they can say yes and explain. And the biggest thing is, don’t dance around it. If they say yes, especially if it’s your first or second interview when this has come up, just like we all when we’ve been new to interviewing it’s a little nerve wracking at first even being on the interviewer end. So this is going to be a new piece, and that’s okay. And the whole point is if that comes up, to have your questions ready, to be prepared. So some really great questions to ask are:
- Do you have a felony conviction from the last seven years?
- If they say yes, What was the charge?
- Where did you serve and for how long?
- What classes did you take while you were incarcerated? (It’s going to make you sound good even to ask that question!)
You can ask these questions. You want to know about their programming, and let them talk about it. And you’re going to find that a lot of people who are in this situation want to talk about it. They’re going to be relieved to be themselves and be able to bring that to the table. And you might find somebody who not only has, what I say, done their work above and beyond but has really come out on the other side as a better person.
One of the questions that was really driven home in this presentation to ask, and it’s a really important question, is:
- What was your ah-ha moment?
That’s the moment where they were ready to live their life differently and take responsibility for their past actions. That really hit home for me, because people who are looking to change their lives in whatever shape or form have that ah-a moment where they say, I need to do something different here.
Brandon: And I like that because it’s an open-ended question to the point where you can actually see what their behavior is like, too. It gives them a chance to story tell a bit. And if you’re a good people reader, you’d be able to determine if they are truly making the effort to get back into society and be productive.
Wendy: Exactly. And for someone to be able to tell the story of, this is the moment I realized, whether it was sitting in a jail cell or a prison cell, or whether it was afterwards and they saw something in their life and they said, I don’t want to do this anymore. It gives you a sense of how serious they are.
Brandon: Yeah, absolutely.
Wendy: And the question I would follow that up with are:
- What steps have you taken to move forward?
Because that tells you what path that person is on and how hard they’re working for it. And it could be that they’re just starting out, they’re really determined and they’re really motivated.
Brandon: Do you know of any studies that have been going on about reentry and whether it’s been a positive or a negative thing?
Wendy: Portland State University apparently is doing a study right now and at the time of the presentation, they said the study was about halfway done, but already the evidence was strongly showing that people with criminal backgrounds are less likely to get in trouble at work, that they’re more likely to so-called keep their nose clean and to really take their job seriously.
My guess is that they’re probably more appreciative of being able to have that chance.
Brandon: It’s probably multifaceted. I think it’s probably that, but I also think the purpose. You go back to that purpose that you mentioned early on, and I think that a lot of people want to be part of something bigger than themselves and being part of an organization gives you that, simply put.
Wendy: It really does. Being part of a team, being part of a purpose, absolutely. It gives people a reason to keep going in the right decision.
Brandon: So we’ve ran long, I’m going to ask you one last question before we wrap up. For the employers that are really considering hiring those that have a criminal background, what are some potential benefits? I know that employers are like, Okay, there’s got to be something in it for me!
Wendy: There is something in it for them! There’s money in it for them. It’s the Work Opportunity Tax Credit. The tax credit for hiring people in certain target groups, and that includes people with criminal backgrounds and veterans. You can get up to $2,400 a year for direct hires. That’s for direct hires, that’s not necessarily through a temp agency coming onto you, and the temp agency gets that money. But if you are really looking to give people that chance, and do hire somebody with a criminal background, there’s just a simple form online, it’s a federal form and you can receive up to $2,400 a year tax credit for that plus the good feeling that you’re hiring somebody.
Brandon: I think it’s more so that. I mean, the money I’m sure, for some employers, would be great, but that’s a pretty small tax benefit. I think, more so, you’re just doing the right thing for people.
Wendy: You’re doing the right thing, and you’re really putting your interview skills to work and bringing somebody on who has a bigger stake than most in keeping their job and doing a good job on the job and then being able to watch them grow and blossom and do something different I think will give people a really good feeling.
Brandon: I have one more question for you, actually. I’m always leery of, I’m more of a free market guy myself, and when new laws are passed I’m always more on the fence of do we really need this? With this one, do you think there’s any unintended consequences from having Ban the Box? I’m just curious if you see any that potentially could come back to employers?
Wendy: I actually had this question at the presentation, it’s funny that you ask that, because I raised my hand because I think I’m probably similar in thinking to you, and in coming from HR, a question I’m always thinking about is risk. And this is not without risk. I raised my hand and I asked, “If you’ve done your checks and you’ve hired somebody who you know had a criminal background, and you asked all these questions and they presented very well. They did really great in the interview and they’re on the job, they’re doing well, and then there’s an incident. There’s something that happens. Could the employer be held liable? Because you knew this person had a criminal background, you knew they were capable of making a bad decision, and could the employer be held liable?”
And the answer is yes. There is risk. However, if you didn’t know the person had a criminal background, maybe it was more than seven years ago or maybe they don’t have one and something happened, the employer could still be held liable.
So yes there’s risk. As a recruiter, there’s risk in every hire. I have hired people who wound up stealing from the company, and I did not see that coming and I was an experienced recruiter. It happened to coworkers of mine as well. There’s always risk, and it’s about using the best skills possible in the interview and in your decision making to make the best decisions you can, and I just think that’s how we all get through life.
Brandon: I agree with you. Wendy, it’s been a lot of fun, I appreciate your storytelling, that made it very fun for the discussion. Again, Wendy Gilbert, she’s on the HR team at Xenium. Thanks for being part of the podcast.
Wendy: Thanks for having me!
Image credit: Kathryn Decker, Flickr