Fair Chance Hiring 101 for Employers

Fair Chance Hiring 101 for Employers
Reading Time: 6 minutes

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. 

What is fair chance hiring? 

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 laws across the U.S. 

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.

The Fair Chance Act

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

Title VII of the Civil Rights Act

Even though Title VII of the Civil Rights Act addresses hiring discrimination based on race, color, 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. 

California Fair Chance Act

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. 

Illinois Employee Background Fairness Act 

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. 

Massachusetts Fair Chance Act

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.

Louisiana Fair Chance Law

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.

Benefits of being a fair chance hiring employer

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: 

  • Broaden your talent pool: As with any other untapped talent pool, opening up to new candidates increases your chance of finding qualified individuals for your openings. As mentioned above, considering almost 70 million Americans have criminal records, imagine how much talent you’re missing out on by not giving them the chance to prove they’re fit for the role. 
  • Higher workplace diversity: Diversity in the workplace has become a relevant topic among companies and the U.S. labor market. Fair chance hiring will allow you to build a diverse workforce and contribute to enhancing the rights and needs of a group disproportionately targeted by the criminal justice system. 
  • Improve employee retention and engagement: Many employees consider a corporate perk when a company is committed to its community and addresses social issues and injustices. Therefore, offering fair chance jobs will strengthen your company culture and EVP and ultimately lead to a more engaged workforce.
  • Boosted productivity: In addition to the fact that workers from various backgrounds foster productivity and creativity, fair chance hiring encourages performance mainly because candidates with a criminal record who are given a second chance will perform as well or better than other employees to prove their worth.

How to get started with fair chance hiring

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. 

Share its importance with the company’s leadership

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. 

Find the right partners and allies

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. 

Review your policies and recruitment elements 

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.  

Base your hiring decisions on capability

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. 

Follow up and spread awareness among your staff

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.

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Contributed by Luis Arellano

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