A Guide to Fair Chance Hiring for Employers [2022]

Fair chance hiring is designed to give people with criminal records greater employment opportunities.

Did you know that as many as 70 million Americans have some type of criminal record that can negatively impact their ability to find jobs?

As it currently stands, 37 states and 150 municipalities and counties have enacted fair chance or ban-the-box laws, and more states are following suit.

This article takes a look at fair chance hiring, including what it involves, the relevant laws, and how employers that implement fair chance hiring policies can remain legally compliant.

Let’s get started.

What Does it Mean to be a “Fair Chance Employer”?

Being a fair chance employer means that you base your employment decisions on your applicants’ qualifications rather than their criminal records and:

  • Do not include questions about arrests or convictions on your applications
  • Do not inquire about criminal convictions before extending a conditional offer of employment

 

While you can still consider criminal convictions, you must first individually assess the conviction as it directly relates to the position. You should also consider how much time has passed since the conviction.

If you still decide against hiring the applicant, you must then go through the adverse action process under the FCRA before making your final decision not to hire as follows:

Send a pre-adverse action notice to the applicant and identify the conviction that makes you want to deny employment. Include a copy of the background check report and give the applicant five days to challenge the information or present mitigating evidence.

Send a final adverse action notice to the applicant if you make a final decision not to hire him or her and provide a copy of his or her rights under the FCRA and state laws.

After learning more about an applicant’s qualifications, you can then decide impartially whether his or her conviction impacts his or her ability to perform the tasks of the job or affects workplace safety.

Fair Chance Hiring Laws

State and Municipal Fair Chance Hiring Laws

Since many states and municipalities have enacted ban-the-box and fair chance hiring laws, it would not be possible to discuss them all in this article.

However, a few key laws are discussed below.

California’s Fair Chance Act

The California Fair Chance Act was effective on Jan. 1, 2018, and prohibits employers with at least five employees from asking about criminal convictions before extending a conditional job offer.

The Fair Chance Act was passed to reduce barriers to employment for people with criminal convictions and to reduce recidivism rates and amended the Fair Employment and Housing Act (FEHA).

Illinois’s Fair Hiring Law

Illinois Gov. Pritzker signed Senate Bill 1480 into law in March 2021. This law expanded the Illinois Humans Rights Act by adding Sec. 2-103.1, which prohibits employers from discriminating against applicants based on criminal records.

Under this law, you cannot make an adverse employment decision unless you first assess a conviction and determine that it substantially relates to the job duties or that hiring the applicant would create a risk to public safety.

Employers must also complete an adverse action process before making a final decision that tracks the process required under the Fair Credit Reporting Act (FCRA).

Louisiana HB 707

On June 16, 2021, Gov. Jon Bel Edwards of Louisiana signed HB 707 into law, which became effective on Aug. 1, 2021.

This law requires employers to individually assess whether an applicant’s criminal record directly and adversely relates to the job duties before denying employment and applies to both public and private employers.

New Mexico SB 2

New Mexico passed and enacted SB 2 in 2021 during a special session. This law prohibits public employers and occupational licensing agencies from considering pardoned, expunged, sealed, dismissed, or juvenile adjudications.

It also prohibits public employers from considering criminal convictions that are not job-related or recent enough to be reasonably predictive of the applicants’ job performance.

Federal Laws

Fair Chance to Compete for Jobs Act of 2019

Congress passed the Fair Chance to Compete for Jobs Act as a part of the National Defense Authorization Act for Fiscal Year 2020, which was signed into law in Dec. 2020.

This law took effect on Dec. 20, 2021, and prohibits federal agencies from awarding government contracts to federal contractors that require criminal background information before extending conditional offers of employment.

In addition to giving equal employment opportunities to people with convictions, several federal laws extend equal opportunity to members of protected groups.

Title VII of the Civil Rights Act of 1964

Title VII of the 1964 Civil Rights Act prohibits discrimination in all aspects of employment that is based on the protected characteristics of employees or applicants.

Some of the protected characteristics include the following:

  • Sex
  • Race
  • Age (40 and older)
  • Disability
  • Pregnancy
  • Sexual orientation
  • Gender identity
  • Genetic information
  • Color
  • National origin
  • Religion

 

Multiple laws have been passed to amend Title VII and add protected characteristics, including the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA).

Title VII and the other federal anti-discrimination laws and amendments are designed to ensure that people with certain protected characteristics enjoy equal employment opportunities.

The prohibitions against discrimination extend to the recruitment and hiring process.

You must assess a criminal conviction individually as it relates to the duties of the position for which the applicant has applied before deciding against hiring him or her.

8 Fair Chance Hiring Practices

To implement fair chance hiring at your company, follow the tips below.

1. Don’t Ask About Criminal Records on Your Job Applications.

If you are in a state that allows you to inquire about criminal records on your applications, consider removing those types of questions. Instead, ask applicants about their qualifications first.

2. Only Consider Convictions that Directly Relate to Your Positions.

If an applicant has a conviction that doesn’t relate to the duties of the job or workplace safety, disregard it. Only consider convictions that relate to the position.

3. Consider the Recency of Convictions.

You should also consider how long ago a candidate was convicted of the offense. If a conviction happened years ago and has not received any convictions since that time, don’t give it as much weight.

Think about establishing a cut-off for considering criminal records other than violent or serious felony offenses.

4. Consider Evidence of Rehabilitation.

A former offender should be allowed to present evidence of rehabilitation before you make a final decision not to hire him or her.

Don’t automatically reject applicants with criminal convictions without allowing them to show that they have changed.

5. Ensure Your Human Resources Staff Are Fully Trained.

Make sure that your human resources staff members are fully trained and up-to-date on the relevant federal, state, and local laws.

They should also know how to assess a conviction to determine whether or not it is relevant.

6. Only Ask for Information About Relevant Convictions.

When you choose a background check provider, only ask the company to provide information about convictions that are relevant for your open positions.

7. Choose a Reliable Employment Background Check Provider.

Make sure to work with a reliable employment background check provider for your criminal background and other types of employment background checks to ensure the information you receive is accurate, up-to-date, and legally compliant.

At iprospectcheck, we always comply with the FCRA, Title VII, and all relevant state and local laws when providing employment background check reports and ensure that the information we provide is current and accurate.

8. Implement a Process for Dealing With Applicants With Criminal Records.

Establish a process at your company for how your hiring managers should handle applicants with criminal convictions, and make sure they are fully trained.

Are There any Benefits to Fair Chance Hiring for Employers?

Following equal employment opportunity and fair chance hiring practices may help you to find qualified candidates by expanding your pool of prospects.

Some former offenders might have education or experience in areas in which companies face significant labor shortages.

Additionally, researchers have found that employees with criminal convictions tend to remain at their jobs for longer periods than those who have clear records.

Fair Chance Hiring FAQs

1. How do I conduct background checks with a fair chance hiring system?

If you implement a fair chance hiring system at your company, you will wait to request a background check until after a candidate has been interviewed, and you have evaluated his or her qualifications.

Some states have laws requiring you to wait until after you extend a conditional job offer or have determined the candidate is otherwise qualified for the position.

2. What is a “fair chance” act?

A fair chance act is a state, local, or federal law that covers public or private employers and protects former offenders from discrimination.

3. What is second chance hiring?

Second chance hiring is another term for fair chance hiring and involves giving people with criminal records a fair chance of being hired by evaluating their skills before requesting criminal background information.

4. Can I consider criminal convictions?

You can still consider criminal convictions under a fair chance hiring policy. However, make sure you wait until later in the hiring process to ask for criminal history information, and individually assess the record as it relates to the job.

Stay Compliant With iprospectcheck’s Employment Screening Services

Fair chance hiring laws are growing in popularity and are being passed in an increasing number of jurisdictions across the U.S.

At iprospectcheck, we can help you implement a fair chance hiring process and provide you with accurate, current, and FCRA-compliant background check reports.

Contact us today to learn about the employment background check services we provide.

DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.

Know Before You Hire

About the Author
Matthew J. Rodgers

Matthew J. Rodgers

Matthew J. Rodgers is a highly accomplished business executive with over 30 years of experience providing strategic vision and leadership to companies ranging from the fortune 500 to iprospectcheck, a company which he co-founded over a decade ago. Matthew is a valued consultant who is dedicated to helping companies create and implement efficient, cost effective and compliant employment screening programs. Matt has been a member of the Professional Background Screeners Association since 2009 . When not focused on iprospectcheck, he can be found spending time with his family, fly fishing, or occasionally running the wild rivers of the American west. A lifetime member of American Whitewater, Matt is passionate about protecting and restoring America’s whitewater rivers.