Fair Chance Hiring: What Employers Need To Know

People with arrest or conviction records attached to their names often face steep if not insurmountable barriers when seeking employment. As such, re-entering the workforce post incarceration can be brutal and seemingly impossible.

In fact, according to Devah Pager in her work "The Mark of a Criminal Record," a criminal record reduces an individual's likelihood of receiving a callback from potential employers by approximately 50%.

Additionally, an analysis by the Prison Policy Initiative found that "formerly incarcerated people are unemployed at a rate of over 27% — higher than the total U.S. unemployment rate during any historical period, including the Great Depression." In many cases, people with criminal records are stigmatized from the very beginning.

In turn, they do not receive the opportunity to sit for an interview, let alone explain their situation or express how they can positively benefit the workplace. To better help people become part of society again, the government is working diligently to implement fair chance hiring laws at federal, state and local levels.

What is fair chance hiring?

An article published by Fast Company defines fair chance hiring as a process that "promotes the idea that all quality job candidates deserve consideration for a job, regardless of criminal histories. This idea recognizes the potential and skills of all job seekers and removes barriers to employment."

Under fair chance hiring, employers do not have to ignore criminal records entirely. However, they are not permitted to consider criminal records until after the candidate has completed the entire interview process. Once the candidate is being considered for the position and has proven to be qualified for the job, then the employer may look into potential criminal records.

In other words, employers are not allowed to ask about arrests or convictions when putting out job applications. Similarly, employers are not legally permitted to question candidates about their criminal history prior to extending a job offer to said candidates.

After a job offer is extended to a candidate, employers are then able to perform criminal background checks. If an arrest or conviction appears on the results of the background check, then the employer may assess the situation based on the specifics of the criminal history.

Employers should weigh the nature of the crime and the severity of the behavior when analyzing criminal records. Also, the duration of time that has since past following the arrest, conviction and sentence completion should be acknowledged. From there, employers should think about how these details pair with the responsibilities that the candidates will need to uphold if they are hired for the jobs.

If the employer decides not to hire a candidate upon learning about the context of the criminal records, then the employer is required to adhere to the Fair Credit Reporting Act's notification guidelines. This must happen prior to notifying the candidates that they are being denied employment. 

Fair chance hiring laws worth familiarizing yourself with

Thanks to the Fair Chance to Compete for Jobs Act of 2019, a federal law prohibits federal employers and private employers with government contracts alike from questioning candidates about their arrest or conviction histories until after a job offer is made, even if the job offer is conditional. 

Under federal Equal Employment Opportunity laws, employers are allowed to consider criminal records when finalizing their hiring decisions. That said, they cannot discriminate or show biases against candidates based on protected classes, including race and nationality.

The majority of states as well as many local jurisdictions have laws that prohibit employers from inquiring about arrests or felony convictions as part of the initial job application process.

According to the Collateral Consequences Resource Center, in certain states across the country, "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."

Fair chance reform policies are rapidly changing all over the United States. As a result, employers should ensure that their HR professionals and the department as a whole fully understand fair chance hiring while staying on top of updates as they are made.