What fair chance hiring laws are and how to comply with them

June 21, 2022

Hiring the right people is crucial to the success of any business, and the best way to do that is by casting a wide net during your search for new hires. The more people there are to choose from, the better your chances are of finding the perfect fit. Piece of cake, right? What if your own mind gets in the way? For one group of people, being qualified for work still ends up mostly in rejection — applicants with a criminal history.

It’s easy to understand why jobs are hard to come by for these folks. A conviction record plays into our assumptions of what makes a person good or bad, reliable or unpredictable. Most people worry that hiring justice system alumni is a bad idea, even if it means rejecting qualified candidates who clearly deserve a second chance. While there are plenty of examples to the contrary, a criminal record has become a walking red flag for some HR departments. And it’s having consequences.

According to the SHRM, about a third of working-age Americans have criminal records—a huge chunk of potential employees who could get passed over if not given a serious look. While many of these people have the right mix of skills and attitude, their conviction history overshadows all that. They lose out on a chance to rehabilitate themselves back into society as well as a chance to take part in your company’s success. Unfortunately, this affects minorities most of all.

The Fair Chance Act is one way to prevent these kneejerk responses from fouling up hiring decisions. Also known as Ban the Box or Box Laws, this bill is devoted to helping ex-offenders find work by making it illegal to ask applicants if they’ve been convicted of a crime before a conditional offer of employment has been extended. In other words, before you let criminal history impact your decision, you must first conduct a good faith interview pursuant to the law.

What is fair chance hiring?

Since its inception in the 1990s, the Fair Chance Act has been adopted in 35 states and 150 cities. In these areas, job applications and interviews may not contain questions about criminal history. Only after issuing a conditional offer of employment can those questions be asked and explored. After that, employers can perform a background check to guide their hiring process. If they feel the applicant’s criminal history poses a problem, they can say no.

Still, some employers think this is unfair, almost like a bait-and-switch scheme where an applicant’s liabilities are exposed only after spending valuable search time. Upon closer inspection though, this doesn’t seem to be the case. At the core, Fair Chance hiring practices give employers the last word about who they hire. If they see something they don’t like in a background check, they can still reject the candidate. Rather than tie employers’ hands, this law ensures that employers give qualified candidates a chance, even those with less-than-ideal pasts.

The result is a win-win: employers get a more diverse workforce, ex-offenders find reentry into work after their sentence ends, and states reduce recidivism through effective rehabilitation. In fact, ex-offenders help with retention thanks to the stability they find in good jobs. They also tend to be watchdogs for ethical behavior at work, since any problems occurring might send suspicion their way.

So, how do these laws impact your company?

Making a hiring decision

In general, the EEOC advises employers to, “Eliminate policies or practices that exclude people from employment based on any criminal record.”

While it is legal in some states to ask about criminal history up front, doing so borders on discrimination and should be avoided. Save those questions for after the interview.

During the interview, keep questions limited to job duties and personality fit. Clearly define each job’s essential requirements so candidates can put their best foot forward. Use an individualized assessment to find out how they can help your team, rather than what went on in their past. If you feel good about your candidate, extend a job offer on the condition that they pass a background check.

When inspecting someone’s criminal history, you’re bound to see one of a few different results: a conviction record, an arrest record, or a combination of both. While arrest records include information about run-ins with the law, only conviction records tell you how a court weighed their case. Arrests can happen to anyone, which is why conviction records should weigh more heavily on your decision.

This leads us to an important next question:

When is it okay to deny someone employment for their criminal background?

Well, it depends. For example, when hiring for safety-sensitive jobs like driving a school bus, it isn’t appropriate for a candidate to have multiple DUI convictions. Tax evasion, however, probably won’t impact a person’s ability to answer phone calls at the front desk.

The EEOC recommends that you consider:

The nature and seriousness of the offense
How much time has passed since they completed their sentence
How their offense intersects with the job opportunity

For the most part, it’s up to you to determine how much an applicant’s criminal history could affect a given employment opportunity. Again, these laws aren’t here to take the decision away from you, but rather to keep employers from rejecting qualified applicants simply because they have a criminal history. However, these laws can differ from state to state.

How laws vary by location

Depending on where you do business, Fair Chance Act laws vary. For example, the state of Michigan lets applicants rebut a rejection if they feel their criminal history doesn’t relate to the job in question. West Virginia, however, provides few rules to protect ex-offenders. Both New York and California employers require some justification that an applicant’s criminal history negatively impacts a hiring decision, but California laws don’t require a written explanation saying such.

Depending on the jurisdiction, Fair Chance Act laws affect how:

Employers deny based on a conviction directly/substantially relating to a job.
A conviction is evaluated before employment is denied.
Applicants learn before applying if their criminal history disqualifies them from employment/licensure.
Employers/licensing boards provide written responses explaining their decisions.

It’s a good idea to explore your state’s laws on this subject before establishing any hiring strategies. For the most part though, they all emphasize the law as encoded in the Civil Rights: prevent discrimination from interfering with someone’s livelihood, including hiring practices.

You may be able to find some financial benefits by hiring ex-offenders. Most states offer tax credits or incentives of some form that encourage employers to take the “risk” by helping ex-offenders regain their role in society. Some states offer reimbursement of training costs or even year-end credits that can offer needed relief.

In closing

Employment decisions aren’t easy. While there are best practices and complex data models to inform those decisions, it’s a judgment call at the end of the day. Fair Chance laws simply keep hiring policies limited to what matters, rather than letting great candidates miss out on a chance they deserve.