Navigating Fair Chance Hiring Laws and Practices

Fair chance hiring is an approach that gives individuals with criminal records a fair opportunity to secure employment. 

This practice, often called second-chance hiring, involves implementing policies that reduce these individuals’ barriers to job seeking. 

By fostering an inclusive hiring process, fair chance employers also contribute to the broader goals of diversity, equity, and inclusion (DEI) in the workplace.

Understanding Fair Chance Hiring Laws

Fair chance hiring laws, or Ban the Box laws, are designed to prevent discrimination against job applicants with criminal histories. These laws require employers to remove questions about criminal records from job applications and delay background checks until later in the hiring process. 

The objective is to ensure that candidates are evaluated based on their qualifications first rather than being immediately disqualified due to past convictions.

Federal and State Fair Chance Hiring Laws

At the federal level, the Fair Chance to Compete for Jobs Act of 2019 requires federal agencies and contractors to follow fair chance hiring practices. This law aims to provide individuals with criminal records a fair opportunity to compete for jobs with federal employers and contractors.

State and local governments have also enacted fair chance hiring laws, varying their requirements. For example:

• California: Employers with five or more employees must delay background checks until a conditional job offer is made. They must also follow specific procedures if they decide to rescind the offer based on the applicant’s criminal history.
• Illinois: Senate Bill 1480 prohibits employers from discriminating against applicants based on criminal records.
• Louisiana: HB 707 requires employers to individually assess whether an applicant’s criminal record directly and adversely relates to the job duties before denying employment. This requirement applies to both public and private employers.
• Michigan: The state has implemented several “clean slate” laws that affect how criminal records can be accessed and used. These laws include the automatic expungement of certain criminal records, which may limit the availability of such records for background checks.
• New Jersey: The Opportunity to Compete Act, also known as the “Ban the Box” law, restricts employers from inquiring about an applicant’s criminal history during the early stages of the hiring process.
• New Mexico: SB 2 prohibits employers from considering pardoned, expunged, sealed, dismissed, or juvenile adjudications.
• New York City: Employers cannot inquire about criminal history until after extending a conditional job offer. If an offer is rescinded, employers must provide a written explanation and allow the candidate to respond. And the Clean Slate Act has specific requirements for handling criminal history information.
• Washington: Employers cannot ask about criminal history until after an initial screening, and they must conduct an individualized assessment if they decide to take adverse action based on the applicant’s record.

Additionally, several federal laws extend equal employment opportunities to people with convictions and protected group members.

What It Means to Be a Fair Chance Employer

Being a fair chance employer involves adopting policies and practices supporting hiring and retaining individuals with criminal records. 

This includes removing questions about criminal history from job applications, delaying background checks until later in the hiring process, conducting individualized assessments to determine if a candidate’s criminal history is relevant, and providing clear communication and transparency throughout the hiring process.

By doing these things, there are several benefits, including: 

• Expanded Talent Pool: By considering a more comprehensive range of candidates, employers can tap into a larger pool of talent, increasing the likelihood of finding the best fit for the job.
• Reduced Recidivism: Employment is a key factor in reducing recidivism rates. By providing opportunities for individuals with criminal records, employers contribute to public safety and community stability.
• Improved Company Reputation: Adopting fair chance hiring practices can enhance an employer’s reputation as a socially responsible and inclusive organization, attracting customers and top talent who value diversity and equity.
• Increased Employee Loyalty: Employees given a second chance often demonstrate higher loyalty and dedication to their employers, resulting in lower turnover rates and increased productivity.

Staying Compliant During the Background Screening Process

To ensure compliance with fair chance hiring laws, HR leaders should stay informed about federal, state, and local fair chance hiring laws and regulations. You can do that by subscribing to and reading blogs like this one. We work to provide you with up-to-date information.

Review and update job applications to remove questions about criminal history, train hiring managers and recruiters on fair chance hiring practices and legal requirements, and develop a standardized process for conducting individualized assessments when considering an applicant’s criminal history.

Lastly, clear and open communication with candidates throughout the hiring process should be maintained, allowing them to explain their criminal records.

Conducting Background Screening with a Fair Chance Hiring System

Implementing a fair chance hiring system requires a thoughtful approach to background screening. Here are some best practices:

• Conduct background checks only after a conditional job offer is made. This ensures that candidates are initially evaluated based on their qualifications and experience.
• If a background check reveals a criminal record, conduct an individualized assessment to determine if the offense is relevant to the job. Consider factors such as the nature and gravity of the offense, the time elapsed since the offense, and the nature of the job.
• Communicate the background screening process to candidates and allow them to explain their criminal history.
• Apply fair chance hiring practices consistently across all candidates to ensure fairness and compliance with legal requirements.

Fair Chance Hiring In Your Workplace

Fair chance hiring is critical to creating an inclusive and diverse workplace. By implementing fair chance hiring practices, HR leaders can reduce barriers for individuals with criminal records, tap into a broader talent pool, and enhance their organization’s reputation as a socially responsible employer. 

Staying informed about federal, state, and local fair chance hiring laws, conducting background checks thoughtfully, and maintaining transparency and consistency throughout the hiring process are essential to fostering a fair and equitable workplace.

S2Verify does not provide legal advice; this article is only intended for educational purposes.

SUBSCRIBE TO BLOG