A Guide To Fair Chance Hiring For Employers

What is Fair Chance Hiring?

Fair chance hiring, also called second chance hiring, exists to increase employment opportunities for individuals with criminal records. In fair chance hiring, an employer defers criminal background checks until late in the process, after a tentative hiring decision has been made and a conditional offer has been extended. Furthermore, if a criminal record does turn up after the job has been conditionally offered, the company does not automatically reject the candidate. Rather, they consider the specific circumstances to determine whether the criminal record has any actual safety risk or makes the person unable to perform the job.

There are good reasons for this practice. For starters, most employers are struggling to fully staff and should welcome the opportunity to increase their candidate pool. There are ex-offenders who have the skills, education, and experience that employers need. Also, there’s evidence that employees with records in their past tend to stay longer at their jobs.

Also, unemployment among individuals with criminal records is high, and it creates a strain on the economy and social services. For that reason, the government has an interest in increasing employment in this group. The Fair Chance To Compete for Jobs Act became law in 2021, and it prohibits the awarding of federal contracts to contractors that conduct criminal background checks before at least conditionally making employment offers.

Employers may find valuable candidates that might have been overlooked by becoming fair chance employers.

What Does It Mean To Be a “Fair Chance Employer?”

A fair chance employer bases hiring decisions on qualifications rather than on whether the candidate has a criminal record. These employers don’t list questions about arrests and convictions on application forms. They don’t do background checks until they’ve made a preliminary decision to hire and have conditionally offered the candidate the job.

That being said, fair chance employers do not entirely do away with criminal background checks. Most still use court record searches and criminal record searches. However, they don’t use them until late in the process, to vet the candidate they’ve chosen before finalizing their hiring decision.

If this delayed background check turns up a criminal record, a fair chance employer doesn’t necessarily reject the candidate. They assess the individual situation to determine whether the offense is one that specifically disqualifies that candidate for the specific job or whether the candidate’s background creates an actual safety hazard in the workplace. If neither of those is the case, they proceed with the hire.

If they do choose not to hire, they follow the adverse action process. First, they notify the candidate of exactly what they found and why they may choose not to offer employment. The applicant then has an opportunity to dispute the findings or offer mitigating evidence. If the employer still chooses not to hire, they give the candidate notice and inform them of their rights under the federal Fair Credit Reporting Act (FRCA) and relevant state and local laws.

State and Municipal Fair Chance Hiring Laws

Many states and localities have fair hiring laws that are more stringent than federal law. For example, at least 37 states as well as over 150 local governments have instituted “ban the box” laws. These eliminate what used to be a common practice, that of including a check box on the application form asking whether the candidate has been arrested or has a conviction.

At least five states, including Illinois, New York, California, Hawaii, and Wisconsin, don’t allow an employer to disqualify a candidate based on their criminal record unless the incident meets specific standards relative to the job in question or public safety.

California does not allow employers to ask about criminal convictions until they’ve made a conditional job offer. Louisiana requires employers to determine whether a candidate’s criminal record directly and adversely impacts the job, and it applies to both public and private employers. In New Mexico, employers may not consider pardoned, expunged, sealed, dismissed, or juvenile records. These are only a few examples of the specific restrictions that go further than the FCRA.

What are Fair Chance Hiring Practices?

Employers must obey state laws where they do business, but even those who don’t operate in restrictive states might consider adopting fair hiring practices. Such practices expand the pool of potential employees, get ahead of laws that may be enacted in the future, and may even enhance a company’s reputation. Here are some key practices:

• Use equal opportunity language in your job posting, stating that you do not discriminate based on a criminal past.
• Don’t ask about criminal records on job applications, even if state and local laws permit you to do so. Focus questions on qualifications.
• Make a preliminary hiring decision before ordering a criminal background check, and extend an offer to the candidate that’s conditional on the check.
• Consider advising against only convictions that relate directly to the specific job or could potentially endanger the workplace and public safety. If the criminal record doesn’t meet these criteria, proceed with the hire.
• Consider how recent the conviction is. Give little weight to incidents that happened well in the past.
• Direct your background screener to report only relevant convictions. If there’s criminal history that’s not pertinent to the job, do your best to avoid even learning about it.
• Train your HR staff. Make sure they know how to assess whether criminal information is relevant.
• Consider mitigating evidence. If, after reviewing criminal records, you lean toward rescinding the employment offer, give the candidate a chance to rebut. Take seriously the evidence they present.
• Choose a reliable partner to perform your background checks.

Eagle Eye Screen Solutions has over 20 years of experience and knows the ins and outs of searching criminal records, particularly when it comes to unusual and archaic systems employed by some cities and counties. We keep abreast of state and local fair hiring laws so we can deliver search results that are accurate, relevant, and legally compliant.