For the Monitor

Monday, September 03, 2018


On this day dedicated to workers, it’s worth taking a minute to consider a group of people too often excluded from the workforce. This group includes roughly one in three adult Americans, equating to roughly 70 million Americans. One estimate is that the exclusion of this group from the workforce resulted in over $78 billion lost in national GDP in 2014. People in this group are more likely to be unemployed, and when they are employed, they earn 40 percent less than people not in this group.

This group is people with a criminal record – of any kind – and it’s a group that is constantly growing. This is particularly true because of the opioid epidemic, which is resulting in more people than usual acquiring criminal records. For example, in 2012, the superior and circuit courts disposed of 10,901 cases involving New Hampshire’s Controlled Drug Act, RSA 318-B. In 2016, that number had grown to 17,370, a nearly 60 percent increase. By way of contrast, New Hampshire’s population increased 2 percent from 2010 to 2017.

Addressing the opioid epidemic and reducing the barriers to re-entry should be seen as two parts of the same effort. A reliable job is one of the most important steps to successful re-entry and to reducing recidivism. Likewise, one afflicted with an opioid addiction has a much improved chance of sustained recovery if employed. Making it difficult for someone with a record to find a job impacts their families, their communities and even businesses.

One of the greatest barriers to employment is “the box” included on many application forms asking applicants if they have a criminal record. Many public and private employers, and licensing and certification boards in New Hampshire, utilize this screening technique, often automatically discarding any application with a checked box.

What is most frustrating for applicants with a record is that box doesn’t ask if someone’s record is relevant to the job they are applying for, how long ago the offense was committed, or what they have done to rehabilitate themselves since the offense. The box provides employers with zero context for an applicant’s record.


The alternative to the box that more than 180 large companies are utilizing is what is known as fair chance hiring. Its essence is removing the box and deferring any inquiry into someone’s record until the interview phase. This enables applicants to explain their record in person, including the specifics of their offense and what they have done in terms of rehabilitation. Employers can then weigh that record against an applicant’s qualifications, rather than making a decision based off only a checked box. Companies utilizing fair chance hiring include Google, Starbucks, Koch Industries, Walmart and Pepsi.

The decision to screen out potential employees who have any criminal record may sound like a means of identifying better employees. The stigma of a criminal record is embedded in our culture. A potential employer may instinctually recoil at the idea of employing someone with a criminal record, thinking of the worst crimes whenever the words “criminal record” appear or whenever the box is checked. The impact of hiring someone with a criminal record, however, often defies the stigma.

Companies that make a point of hiring people with a record report that often such workers are particularly hard working, loyal to the company and committed to being productive employees. They know they are working uphill every day. Research, including by Johns Hopkins Health Resource Center, indicates that retention rates for those with criminal records are higher than those without records. For example, one company adopted a program to recruit employees with criminal histories and reduced turnover from 25 percent to 11 percent.

As New Hampshire celebrates workers and strives to overcome the opioid epidemic, we should consider adopting fair chance hiring. Thirty-one states and more than 150 cities and counties already have. Fair chance hiring still allows businesses to ask about a criminal record and conduct a criminal record check later in the hiring process, and in no way requires that employers hire someone with a criminal record.

On a statewide economic scale, reducing the barriers to re-entry could also place more individuals in New Hampshire’s workforce. Employers are struggling to fill jobs as we confront a workforce shortage so dire it’s been called an economic threat to our state. Walk up any Main Street in New Hampshire, and you’ll inevitably see “help wanted” signs. New Hampshire needs workers, and fair chance hiring can help produce them.

(Jeanne Hruska is policy director for ACLU-NH. Albert [Buzz] Scherr is a professor at UNH School of Law. The opinions expressed herein do not necessarily reflect the views of UNH Law or UNH.)