Fair Chance Hiring Practices

Fair chance hiring laws – sometimes called “ban-the-box” laws – have become increasingly popular in recent years. More states are adopting stricter regulations regarding the circumstances under which employers may perform criminal background checks. The purpose of fair chance hiring is to allow past offenders to present their qualifications before their criminal history can impact an employers’ judgment.

While many employers are wary of fair chance laws, it is important not to view them as inherently negative. See it as a chance to make more thoughtful, less biased hiring decisions and gain access to a bigger talent pool. It is also your company’s chance to impact your community positively. One in three Americans has a criminal record; giving former offenders a second chance decreases recidivism, helping lower the crime rate.

Below, we will provide you with a brief guide to fair chance hiring laws and how to implement them into your organization. 

What Is Fair Chance Hiring?

Fair chance hiring laws were designed to give former offenders a chance to be judged on their qualifications first and foremost. Ex-convicts often have a hard time finding work, making it challenging to get their lives back on track. Fair chance hiring requires that employers consider candidates without asking for their criminal history first. This is why fair chance hiring laws are often called “ban-the-box” laws, referencing a box that was once common on job applications asking whether candidates had ever been convicted of a felony.

Fair chance hiring regulations vary significantly from state to state and city to city. Make sure to look at laws in your area closely to ensure compliance. Typically, fair chance hiring regulations include:

  • Your company cannot ask about an applicant’s criminal history or conduct any criminal background checks until after considering a candidate’s qualifications
  • You can only make inquiries about criminal history after you have decided a candidate is in the running for the job. (Some cities and states are even stricter, stipulating you can only run a background check as part of a conditional job offer.)
  • If you decide against hiring an applicant due to information gleaned from a criminal background check, you must inform the candidate in writing what about their history disqualified them from a job. The applicant must be given an opportunity to address concerns directly in a written response and correct inaccuracies.
    • On this note, many jurisdictions have specific forms and language you must use when notifying candidates about findings on their criminal background checks.

As of 2022, 37 states and over 150 cities have adopted some variation of fair chance hiring laws. In most states and cities, fair chance practices only apply to public-sector jobs. However, 15 states have extended fair chance policies to apply to private-sector jobs (see a full list here).

Why Should I Start Fair Chance Hiring Practices?

First and foremost, if your city or state has fair chance hiring laws in place, you legally have to adopt fair chance hiring practices. Failure to comply could result in lawsuits, fines, and a blow to your company’s reputation. However – even if compliance is not required – you may want to consider a fair chance hiring policy anyway.

As we have touched upon above, one in three Americans has a criminal record. Amid the Great Resignation, finding and retaining talent is becoming more challenging. Automatically nixing a large portion of the workforce can make hiring even more difficult. Ban the box laws can also have a positive impact on the community. Various studies show they are highly effective at preventing repeat offenses.

That being said, a lot depends on your industry. A past criminal record can be a significant red flag for safety-sensitive positions or positions where employees handle sensitive information. Having strict policies on hiring ex-offenders may be important to protect your company.

In short, if there are not currently fair chance hiring regulations in your area, it’s ultimately up to you whether you want to adopt a fair chance hiring policy at your place of work. 

How Do I Adopt A Fair Chance Hiring Policy?

Create A New Hiring Plan

If you’re implementing a fair chance hiring policy for the first time, start by creating a hiring plan on the executive level. Bring in leaders from across the company to discuss changes to hiring policy and enlist help from your legal department to ensure compliance. It is critical that your HR and recruiting team be in the loop here, as they’ll play a crucial role in fair chance talent acquisition.

Conduct Skills-Based Interviews Before Any Background Checks

A skills-based interview is about more than just not asking about a candidate’s criminal background until making a job offer. Ex-convicts may have gaps in their resumes, but this does not mean they’re not qualified to do a job. When conducting interviews, focus on a candidate’s skill set as much as their past experience. Many excellent candidates may not have a job title in their resume that relates to the position but may have transferrable skills from past volunteer work or seemingly unrelated jobs. 

Assess Charges Before Making Rash Decisions

You should always conduct a criminal background check – even in fair chance states – once you are legally allowed to do so. However, if you find a candidate with a criminal history, do not dismiss that candidate immediately. You will need to have an individualized assessment process in place for different positions. Most companies recommend you look into:

  • The nature of the candidate’s criminal history
  • The length of time since their conviction
  • The nature of the job they’re applying for

Follow All Legal Protocol In Your Area

Make sure you run your fair chance hiring policy by your legal team. Regulations vary significantly by state and city – and tend to change frequently. A failure to comply with fair chance policies puts your company at legal risk, so make sure you follow legal protocol strictly.

Fair Chance Hiring Practices: The Bottom Line

Fair chance hiring practices ensure those with past criminal convictions have an opportunity to get their lives back on track. While many employers are nervous about hiring individuals with criminal records, try to focus on the positive aspects of fair chance laws. You are opening yourself up to a larger applicant pool and helping your community stay crime-free – as we stated earlier, Fair Chace Laws reduce recidivism and help prevent former offenders from ending up back in the system.

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