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A common problem for candidates across the U.S. is landing a job with a criminal record. This is a severe issue in the current labor market, considering that almost 70 million people in the country have convictions. Fortunately, in the recent past, fair chance hiring has set a strong foundation to help this talent pool and raise awareness among employers about the social responsibility and benefits of hiring formerly incarcerated job seekers.
Fair chance hiring is a set of practices that ensure employers are open to hiring individuals regardless of their criminal record. The concept is based on the idea that all job-seekers have the right to prove they’re well suited for a job role regardless of their background and don’t stand a risk to a company.
Even though fair chance hiring seems like an obvious DEI initiative for many employers, other companies may have an unconscious bias toward candidates with criminal records that will undoubtedly inhibit an objective evaluation and influence their hiring decisions.
Since work discrimination is such a delicate issue and many discriminating practices go unnoticed, fair chance hiring laws have been established on the federal, state, and local levels. Therefore, employers who are unaware of these regulations are urged to understand the laws and policies in their jurisdiction to ensure they’re complying.
Fair chance hiring regulations go beyond making employers remove the criminal history box in their job applications. While this is a huge first step to tackling the problem and guaranteeing candidates aren’t disqualified before being interviewed or even receiving a job offer, here are some fair chance employment policies and laws that need to be reviewed and observed by companies.
On a federal level, the Fair Chance to Compete for Jobs Act of 2019 establishes that federal agencies and contractors shouldn’t ask candidates to disclose any criminal record information before presenting a conditional offer of employment. Although this act doesn’t affect private companies, this Fair Chance Hiring Act works as a reference for the rest of the job market.
Even though Title VII of the Civil Rights Act addresses hiring discrimination based on race, religion, or sex, the U.S. Equal Employment Opportunity Commission (EEOC) published the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions in 2012 as an addition to Title VII of the Civil Rights Act.
In general terms, the EEOC guidance requires employers not to rely on convictions and arrest records to make an employment decision and to conduct individualized assessments to afford candidates the chance to demonstrate that they shouldn’t be excluded based on more complete information or specific circumstances.
Many U.S. states have established their own fair chance hiring acts, derived from the previous federal acts and the EEOC guidance. California’s Fair Chance Act stipulates that it’s illegal for companies to ask job seekers about their criminal background in their applications, job ads, or interviews before extending a job offer.
California companies must also complete an individualized assessment of a candidate’s conviction before making any official decisions. They’re also prohibited from considering arrests that didn’t follow any convictions and convictions that were sealed, dismissed, eradicated, or expunged.
In 2021, Illinois signed the Employee Background Fairness Act into law, which prohibits employers from ruling out applicants with criminal records without determining if the conviction is relevant to the job role duties or if it puts public safety at risk. If this is the case, employers are urged to complete a reporting process to argue why they decline to offer a candidate a job due to their conviction.
As with many other U.S. states under the ban-the-box regulation, this fair chance hiring law prohibits employers from asking job seekers about their conviction history in initial employment applications. On top of that, companies can’t ask candidates about criminal cases that didn’t result in convictions, misdemeanor convictions more than three years old, or expunged records.
Similar to the Illinois Employee Background Fairness Act, it requires employers to assess if a candidate’s conviction is relevant to the job before denying them employment. This fair chance hiring law also restrains companies from considering any information related to arrest records or charges that didn’t result in a conviction in the course of a background check.
Although these are the only states listed in this article, it’s vital to note that 37 states and over 150 cities across the U.S. have passed fair chance hiring laws or regulations. So, make sure to be informed and comply with the policies in your location.
Aside from being a lawful and socially responsible practice, fair chance hiring positively impacts many other aspects of a company. From productivity to improving your employer branding, here are a few of the benefits of becoming a fair chance employer:
As with any other company culture change, it takes time to adopt fair chance hiring and renovate your hiring process to consider candidates for your job openings regardless of their conviction history. Nevertheless, take for a fact it’s worthwhile.
Fair chance employers are fully committed to giving job seekers equal opportunities to apply and compete for their available jobs. If you’re convinced that acquiring fair chance employment is one of your core values or improving your fair-chance hiring practices is key for your company, here are a few ideas to get you started.
A huge factor in making fair chance hiring effective is consistency. The buy-in needs to come from leaders and managers; therefore, it’s essential to share information and research-supported facts about why promoting fair chance jobs is necessary with company stakeholders.
You can use testimonials or reach out to fair chance hiring activists to strengthen your case about the importance of destigmatizing candidates formerly incarcerated. Once the company’s leadership and hiring managers are on the same page, it’s time to draw an action plan and set responsibilities.
Since fair chance hiring involves different aspects, there’s no harm in looking for assistance. Partner with local organizations that guide you through the laws and policies you must comply with and practices you can adopt to get started with fair chance employment. Working with a recruiter is another alliance you can try to connect with formerly incarcerated candidates to fill your openings and add value to your company.
The first step to becoming a fair chance employer is to evaluate your hiring practices and ensure they don’t screen out qualified talent with a conviction history. You can also review what you need to meet all the legal requirements for fair chance employment. Be open about your background checks and add equal opportunity statements and language to your job descriptions to encourage job seekers with criminal records to apply.
Diving into the background checks aspect, run them after extending an offer of employment and avoid any inquiries about criminal history in your application. Beforehand, set the criteria to clear or flag a candidate’s application depending on whether their conviction directly relates to the role so you can run a more effective assessment process to determine their qualifications.
Skills-based interviewing is the most effective fair chance hiring practice for evaluating candidates based on their competencies and qualifications for the role instead of their criminal record. Even if a conviction arises during a background check, skills-based and Green Factors tests (also known as nature-time-nature) will help you assess a candidate’s criminal history and qualities with the job’s tasks and responsibilities.
To fully embrace fair chance hiring, there’s also work to do in-house. Employers have to conduct quarterly audits to evaluate compliance with the law, inclusive attitudes and language of their current staff, and the support given to fair chance workers after they are hired. By auditing your internal fair chance employment practices, you can identify areas for improvement and remove any roadblocks to enacting real changes.
Companies that aren’t legally required to offer chance jobs can still benefit from fair chance employment. Still, fair chance hiring practices go beyond experiencing the corporate advantage of broadening an employer’s talent pool; the true purpose of these practices is to encourage social responsibility by giving people with conviction backgrounds a second chance.
Contributed by Luis Arellano
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