What is fair chance hiring?
When applying for a job, candidates generally have to check a box that allows you to conduct a background check. Fair hiring laws, or “ban the box” laws, delay the inquiry into a person’s legal history until later in the employment process. This practice is designed to give individuals previously incarcerated the chance to present their qualifications to you without a legal record sabotaging their chance of getting hired.
Since its introduction, 37 states, the District of Columbia and over 150 counties and cities have adopted a form of fair chance policy for public sector employment. Fifteen of those states and 22 counties and cities have extended their policy to private employment. In recent years, support for fair chance practices has increased in popularity not only at the state and local levels but also federally.
President Obama endorsed ban the box laws in 2015 by pushing federal agencies to adopt the practice of delaying record inquiries until later in the employment process. Effective in 2021, the Fair Chance to Compete for Jobs Act of 2019 prohibits most federal contractors and agencies from requesting arrest and conviction records from job candidates before offering them conditionalemployment.
Many jurisdictions are also adopting policies that go beyond banning the box by removing the conviction history question from applications altogether. Over 267 million people now live in a jurisdiction in the United States with some form of fair hiring law.
Requirements for fair chance hiring laws
What is fair chance hiring supposed to look like? Well, that depends on what kind of business you have and what jurisdiction you’re in. Some laws only apply to hiring practices for public sector employment. Other laws apply to both public and private businesses and may include exemptions for companies with fewer than a set number of employees. However, most laws contain the following criteria.
Background checks
Before asking an applicant about their history or running a background check, you must consider their qualifications for the job they’ve applied to. Depending on the jurisdiction, you can inquire about legal records after it’s been established the candidate is in the running for the job. A background check can then be administered as part of a conditional employment offer, meaning the candidate will receive an offer of employment after the background check is successfully completed.
Nature of the offense
If a background check reveals any convictions or prior imprisonment, many fair hiring laws prohibit you from turning down a candidate based on that fact alone. You must consider the nature of the offense and decide if it interferes with the job’s requirements. Some legal requirements may overrule this. For instance, if you run a daycare or are in charge of hiring for a school, a candidate who’s been convicted of hurting children may not be allowed to work in these settings.
Transparency with the candidate
Refusing to hire a candidate because of their background check is allowed in some situations. However, you’re required to inform the candidate in writing what specific aspect of their history is preventing them from being hired and why. Many locations with established ban the box laws have special forms or processes that must be followed when informing a candidate of this information.
In return, the candidate should be given the chance to address your concerns in writing and provide extra details or correct any misinformation from the report. Having the ability to set their own record straight is an essential component of fair chance practices for those previously incarcerated.
Failing to comply with fair chance laws can result in civil penalties. You may be required to pay hundreds or thousands of dollars per incident or become the recipient of an unfair hiring lawsuit.
Examples of fair hiring laws
Removing the legal history inquiry box from an application is only the tip of the iceberg. Many policies are more complex than that and should be thoroughly reviewed.
California Fair Chance Act
The Fair Chance Act in California, effective January 1, 2008, makes it illegal for most employers in the state with five or more employees to inquire about a candidate’s legal history before an employment offer has been made. Employers can’t ask any questions about a candidate’s legal history in their applications, job ads or during an interview.
Once a conditional job offer is made, employers can conduct a background check, but they must complete an individualized assessment of a candidate’s convictions before making an official employment decision.
Massachusetts Fair Chance Act
Signed into law in 2010, the Fair Chance Act in Massachusetts prohibits employers from using an initial employment application asking applicants whether they’ve been convicted of a crime. The only exception is if a legal restriction applies to a certain position. Most employers also are not allowed to ask candidates about certain legal records, such as legal cases that didn’t result in a conviction, misdemeanor convictions that occurred at least three years ago and sealed or expunged records.
Are fair chance hiring laws effective?
Fair chance hiring laws are still pretty new and haven’t been researched enough to say whether they’re truly effective or not. However, these laws can be beneficial for both workers and employers. For instance, workers with legal records now have access to more employment opportunities. This means more chances to get their lives back on track and work toward a better future.
They also give individuals previously incarcerated the opportunity to address any missteps from their past. If they’re hired for a job even with their legal history, they now have the assurance that their qualifications and work ethic speak louder than any past mistakes.
But what is fair chance hiring doing for you? As an employer, keeping an open mind when evaluating a background check from a candidate with a legal history gives you access to a stronger talent pool that can benefit your business. Instead of being quick to overlook a person previously incarcerated, fair chance laws push you to assess otherwise qualified candidates and consider what their skills and employment history can do for your company.
On the other hand, fair chance laws can put additional pressure on employers, especially if you run a business with multiple locations across states, cities and counties. Compliance requirements will most likely vary widely and may not even exist in some locations. That said, fair hiring has been increasing nationwide over the past decade. It’s possible this won’t be an issue at all in the future.
Your best course of action is to stay up to date on fair chance laws wherever your business is located. Make sure your hiring practices align with any policies and that all job candidates receive fair treatment when applying and interviewing for an open position.
