The myth of the "clean" record: Why your background check policy is flawed

[00:00:13] Welcome to episode 124 of the High Volume Hiring Podcast. I am Steven Rothberg. I am the founder of College Recruiter and I am also battling a cold. So if I sound like I've been smoking a lot, haven't been, but do with that as you wish. My co-host, Jeanette Leeds, I don't think that you have been smoking a lot or battling a cold. No colds and we're just not going to go. No, no smoking. My kids are watching. No, no smoking. Exactly.

[00:00:44] Well, we are really excited today because we have Emily Baxter here who is the director of We Are Criminals. Welcome, Emily! Awesome. So for those that don't know, let me just give quick background and Emily then we'll turn it over to you. So Emily is an attorney, an advocate and a photographer.

[00:01:03] And she began developing We Are All Criminals, which is a photo and a story-based catalyst for conversations about race, class, privilege and punishment back in what was 2011. And the whole goal, as I understand, it's a tool for employer engagement. So maybe tell us like a little bit more about that, what brought you to the work, just like background for our listeners on it because it's I'm really excited to get into this conversation.

[00:01:31] Oh, I'm so excited to be here. Thank you so much for having me. The whole project began as a simple query. What have you had the luxury to forget? The claim was that while one in four people in the United States has a criminal record, I contend that four in four have a criminal history.

[00:01:49] Yes. In other words, we've all violated the law. Only a relatively small portion of the U.S. population has a publicly, permanently, instantaneously record that alleges as much. And so I began collecting stories of people who have committed crimes for which they have not been caught.

[00:02:08] And together we look through the state statute, federal codes and broader social stigma that would have prevented them from living the lives they now enjoy had they been confined and defined by that criminal record. Confined and defined. I love it. So the listeners, the viewers of our podcast are primarily talent acquisition leaders at large organizations.

[00:02:34] So let's talk about this from the perspective of those employers. If I come to an employer like that as a potential hire, I've committed a crime and been convicted. What's the impact of that?

[00:02:51] So the impact upon the person themselves, the person who carries that record, it cannot be overstated. It can radically change the way one is able to move in the world.

[00:03:05] There are hundreds of thousands of collateral sanctions. Those are laws that are actually penned into statute and code that prohibits somebody with particular records from working in certain places or certain fields, for example, living in certain places and generally living life. It goes far beyond just employment or housing. It stretches into school, licensure, loans, travel, the ability to vote.

[00:03:34] But in terms of employment, even if there isn't a sanction that prohibits somebody from working in a particular place or field, the broader social stigma may disallow somebody from working in a place or field. So although the employer legally can hire somebody, in some cases, they may choose not to because, oh, Jeanette's got a misdemeanor. So I don't want to have her in my workplace. 100 percent.

[00:04:04] And Jeanette, I'm making that up. Which, for the record, I do not. Yes, exactly. Which, for the record, returning to foreign people in the United States have been misdemeanor. Well, we're right. And maybe I should, but I do not. Yes, we haven't been caught. We haven't been convicted, but we have done. Absolutely. Right. Just because you don't have a record doesn't mean you don't have a history. And just because you don't have a record doesn't mean that you haven't received a second chance or a third chance or a 16th chance.

[00:04:33] Yeah. Right. This is fair chance hiring is about extending the chances that you yourself have received to the people who are job seeking. I mean, and this was something we were talking about, like, in the green room a bit around, like, what does a record really mean? Which we started to, like, define that, right? What does it mean if you have or, like, you don't have, but you really maybe should have or shouldn't have.

[00:04:57] But, and then this idea of second chances. Maybe talk a bit more around that idea of second chances and employment and what a, you know, positive impact that can have. Absolutely. I have worked with countless people over the years, job seekers. And the counseling that I often give them is to, you know, be realistic about where they may be able to work. Obtaining and understanding their criminal records.

[00:05:27] It's ridiculous to, if you've ever pulled up a background report before, practically need a Rosetta Stone in order to understand them. And they vary jurisdiction by jurisdiction. And oftentimes people don't know what the record says. And so even if they're trying to be honest, when asked a question about their criminal records, they may come across as being dishonest because of just the inability to understand what the record report says.

[00:05:52] So we talk about obtaining and understanding that record, those cryptic documents. We talk about the possibility of expungement. So that's removing from public view your criminal record. We talk about the limitations of those expungements, how they are, you know, very infrequently granted. And even when they are, criminal records still tend to exist in a variety of databases around the world.

[00:06:17] We have real conversations about working to find community partners who can help connect folks to the fair chance hiring folks. And then we talk about their story, right? People need to be able to, in short terms, be brief, take accountability and focus on rehabilitation. That's what employers want to hear. They want to know, are you going to be a good hire?

[00:06:44] And the best way to do that isn't by offering an excuse or relitigating a matter, but it's about being brief, taking accountability and focusing on how you have changed. And why, if given that chance to work for this cafe or this organization or this office, this field, you will be the best employee.

[00:07:08] Because of those lessons learned, because of those skills gained, because of the fire in your belly. Yeah. You are ready to hit the ground running. Whether you're a payroll pro or an employee wanting to understand your paycheck better, we've got you covered.

[00:07:24] Tune into It's About Payroll for expert insights on payroll trends and compliance, or check out It's About Your Paycheck, the go-to podcast for employees looking to understand their pay and rights. Two great shows, two great hosts. Listen now, brought to you by Work Defined, where payroll meets clarity. So, Jeanette, we were talking before hitting the record button about, was it Mod Pizza?

[00:07:53] Yeah, so Mod Pizza, which I had heard about a number of years back, is a chain pizzeria. And their premise is we're just going to hire, for lack of a better word, let's just say, like criminals, right? People who have a record. With the idea is it's really hard for them to get a job, and they're going to be much more, speaking of the word, like fire in your belly, right? Like much more productive, loyal. They're going to show up to work.

[00:08:22] They're not going to ghost. I believe if I remember, like the retention levels was like so high compared to, you know, other types of workers. And they built their whole business model on that, which is just, it was like, it's super powerful. You know, as we were talking, I think, I mean, you had said, what was it? The bread, Dave's Color Bread also has that, which I didn't even realize. And I just think it's a business model of thinking differently, right?

[00:08:50] Around who you're going to hire and why, and for a number of organizations that are, you know, at times really wanting to fill and not rehire over and over. It's interesting. Maybe tell us a little bit more about like your experience. Yeah. Mass incarceration and mass criminalization are not only unparalleled in the world, the U.S. mass incarceration, it's unprecedented in our industry. So it's no surprise that that has a major impact on the labor force.

[00:09:20] Right. And given the disproportionate effect of our criminal legal system on black people, brown people, indigenous people, people living in poverty, the tail told on a background check works to further harm people who are already marginalized.

[00:09:37] And so if you're only going to be hiring people who do not have any marks on their criminal record, you will likely be hiring people who are much older and who went through their kind of criminogenic years before the advent of criminal records. It's before, you know, with each passing legislative session, we pass more and more laws prohibiting more and more behavior.

[00:10:04] And we are retaining these records for longer and longer and we're making them more and more public. So you're either going to be hiring folks who, you know, passed through those years, those teenage to 20, you know, in your 20s when folks tend to commit the most number of crimes. Right. So you're hiring people who haven't lived under the microscope of the criminal legal system. Right.

[00:10:32] So people whose privilege, either because of their skin color, their zip code, have kept them out of the crosshairs of the criminal legal system so that they haven't had that chance to be caught. They haven't had that chance to acquire a criminal record. Well, the three of us, especially you, have done a really great job of sort of laying this out from like a social justice perspective, the benefit to the individual.

[00:10:59] Talk to us about how you would talk to a talent acquisition professional who would agree with you, who would like to be more inclusive, who would like to broaden their talent pool, look for employees who are going to have that fire in their belly, be more loyal. But they've got to go to their C-suite and they've got to convince the crusty old CEO. Actually, we should be hiring that it's good for the company. It's good for the shareholders to have these people on our payroll. What's the argument?

[00:11:29] How do you persuade that person? I think Jeanette already made a very compelling point, right? It's not a cool star. And this is why I have a co-host. You're also doing wonderful. Say all three of us are cool stars. I'm skating by. Okay, fair enough. But, you know, retention rates are higher. Those loyalty, especially now, you know, the labor force, the way that people are engaging with jobs. It's changing.

[00:11:59] Folks who receive that second chance, who work with fair chance hires tend to be people who stick around longer, who work harder, who are more loyal. And part of that is because they're not as mobile, frankly. You know, they don't have that same mobility that many other people in the workforce may benefit from.

[00:12:23] And some of it is just straight loyalty, that people tend to stay with people who have given them a second chance. So I think that is one very compelling thing. Another thing, if you're looking just at, you know, money is that folks who receive second chances, it doesn't just benefit them. It's not just a job. It's a lifeline. It's a lifeline for them. It's a lifeline for their entire household.

[00:12:48] In the U.S. right now, half of all children in the world, so 50% of children, have at least one parent who has a criminal record. You know, you're looking at an enormous number. It's a huge number. You're looking at an enormous number of people who can be profoundly affected by joblessness, by people, by their parents who are unable to provide.

[00:13:13] So when you hire somebody who has a criminal record, when you give them that second chance, it's a lifeline to them. It's a lifeline to their family. That money comes back into the community and further benefits the entire community and environment. I love that. And I think it's so, you know, tying it back to the name of the organization. Let me just make sure I get this exactly right, right? We are all criminals, right?

[00:13:42] We have all done something and yet haven't been caught and haven't had to, you know, have this, you know, for lack of a better, scarlet letter on us. And that's impact. So it's so powerful. It really is. So thank you. Scarlet letter is a great way of putting it right. And there's no amount of scrubbing that cleans that scarlet letter from an online background check. And that background check burns just as brightly the day after an interaction with the criminal legal system as it will 30 years from now.

[00:14:11] You know, we don't have that beautiful forgetfulness or the attrition that you once were able to have where things fall away. You're allowed to change. Right. With criminal background checks, you are held back all of the time by that incident. And there are definitely very different levels of criminality, a petty misdemeanor, gross misdemeanor, felony, certain kinds of felonies.

[00:14:40] The fact that you've been convicted of a crime that has nothing to do with your potential job. To me, that's like an easy case. And we were talking before, like, you know, a DUI conviction from 25 years ago and you want to work as a cashier in a store. Like, what do those two things have to do with each other? A DUI conviction six weeks ago and you want to drive a taxi. That I can understand. I can understand that.

[00:15:09] Although I will say, don't sleep on transferable skills, right? If you've got... Well, that's true. There's one that I interviewed for the project who had committed when he was a teenager. He hacked into a database. He was not caught, not convicted. He's now an IT administrator, right? Yeah. Transferable skills. I love that. Well, lots of things for our listeners to think about. This has been fantastic.

[00:15:38] Emily, thank you so much for the work you and your organization are doing and making our listeners, you know, think about things in a different way than maybe they were already. So, thank you. I so appreciate you having me on. Thank you so much. Thank you, Emily. Take care, everyone.