Whether you’re new to fair chance or in need of a refresher, here’s all the essential information to know about fair chance hiring practices.
Nearly 1 in 3 U.S. adults have criminal records—that’s approximately 70 million Americans. When these individuals attempt to re-enter the working world post-incarceration, they often face immense employment barriers. In fact, analysis shows that formerly incarcerated people are unemployed at a rate of over 27 percent—higher than the total U.S. unemployment rate during any historical period, including the Great Depression.
This is a major issue, not only because of the human impact, but also because of the impact on the workforce. Prior to the pandemic, estimates put the cost of employment losses among workers with records at $87 billion annually in lost gross domestic product.
To fix this massive problem, the government and private employers have taken measures to level the playing field by implementing fair chance hiring practices.
The government’s role in fair chance hiring
Fair chance hiring mandates that employers take a person’s criminal record into account only after the candidate has been interviewed and is considered qualified for a role. Fair chance hiring directives have been enacted on the federal, state and local levels, and range from recommendations to policies to full-blown law.
Let’s take a closer look at the government’s influence on fair chance hiring laws:
- In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) shared its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. The guidance “…requires employers to consider whether criminal offenses are job related and consistent with business necessity prior to making employment decisions, and conducting an individualized assessment to afford an individual the opportunity to demonstrate that they should not be excluded based on more complete information and the specific circumstances.”
- In 2015, President Obama directed federal agencies to delay inquiries into job applicants’ records until further along in the hiring process.
- In December 2019, the “Fair Chance to Compete for Jobs Act of 2019” became law as part of the National Defense Authorization Act. This law, which went into effect December 2021, prohibits most federal agencies and contractors from requesting information on a candidate’s arrest and conviction record until after the job offer.
- Currently, 37 states and over 150 cities and counties nationwide have adopted what is widely known as “ban the box.” “Ban the box” refers to the removal of what’s usually a check box on an application that asks whether the applicant has ever had a felony or been arrested.
- Fifteen states have mandated the removal of conviction history questions from job applications for private employers. These include California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.
- Illinois recently joined four other states (New York, Wisconsin, Hawaii and California) that provide that “…employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety.”
This is just a high-level review of what federal and local governments are doing to endorse fair chance hiring. It’s imperative you work with your counsel to understand the fair chance hiring laws and regulations in your jurisdiction to ensure your company is complying.
Employers and fair chance hiring practices
While knowing your local laws is important, you don’t need a mandate to create internal change. Organizations can expand talent pools while also giving candidates a fair chance at a career through systematic changes to hiring and employment policies.
Let’s dig deeper into fair chance hiring practices employers use to hire fairly across all stages of hiring:
- Avoid stigmatizing language: Many justice-impacted individuals will have been out of the workforce for some time and will have gaps in their employment history. So, it’s important to consider the words and phrases you use in your job description so as not to exclude or prevent someone from applying. Stick with inclusive language such as “entry-level position,” or “we’ll teach you” so candidates feel confident they can use their transferable skills, while also learning on the job.
- Include an equal opportunity statement in job postings: Including equal opportunity language and statements on job ads makes it clear that you will not discriminate based on someone’s criminal past. Plus, it will also make the individual feel more comfortable applying for the position knowing the company is proactive about fair chance hiring.
- Work with a sourcing partner to recruit fair chance talent: There are a variety of sourcing partners across the U.S. who work directly with fair chance candidates to prepare them for the hiring process through programs like job readiness courses and case management. Working with one of these sourcing partners is a great way to connect with candidates.
- Skills-based interviewing: Because candidates with prior convictions may have gaps in their resume, interviews should be focused on assessing specific skills, rather than on whether or not they have the “perfect” resume. Such competencies may include their willingness to learn, their people skills, or their computer proficiencies.
- Ban the box and background checks: Compliance with “ban the box” policies usually includes delaying any inquiries about criminal history until after a conditional offer has been made. Consider working with a trusted background check partner like Checkr who makes it easy to assess candidates fairly based on your organization’s needs.
- Nature-time-nature test: If criminal records do arise during a background check, use the nature-time-nature test to assess the nexus of the criminal history and the job role: The nature of that individual’s conviction history; the length of time that’s passed; and the nature of the job for which you’re hiring. The nature-time-nature test ensures fair assessment of a candidate’s criminal record in relation to the job’s role and responsibilities.
- Onboarding: Once you’ve hired your new talent, you can focus on getting them oriented, ramped up and comfortable adjusting to a new environment. Find a balance between treating them the same as other new employees, while maintaining a safe space for them to ask for additional support.
- Conduct a quarterly audit: Whether you’re following government guidance or your own internal policies, it’s important to take a periodic look at how well your company is performing. Ensure you’re in compliance with any local, state or federal hiring laws to protect your business from legal action or intervention. At the same time, audit your internal hiring principles to determine areas for improvement.
- Set goals: Set and track metrics for hiring and frequently report on those metrics. If you’re not meeting those goals, determine what roadblocks are standing in your way and how you can remove them in order to enact real, measurable change.
- Commit to your fair chance workers: Implementing fair chance hiring practices isn’t enough. To create a thriving workforce, focus on supporting these individuals once they become employees. If not, your retention may suffer, and you could lose talent with the potential to positively influence your organization.
Give fair chance a chance
It’s important to remember that real change takes time. To that end, for fair chance hiring practices to really work, they can’t be implemented overnight. Work closely with your company’s legal counsel to ensure your organization is in compliance with all local, state and federal fair chance policies.
From there, create a phased approach to implementing fair chance practices, which should include education, training, and adoption. Here are 3 things you can do now to start a fair chance hiring initiative.
Learn more about fair chance hiring practices in our free eBook: How to be a Fair Chance Employer.
How to be a Fair Chance Employer
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