How to Practice Fair Chance Hiring for Applicants

Ngoc Anh Luong
Ngoc Anh Luong
Head of Digital Marketing at traicie - The best AI-powered talent sourcing tool for recruiters
Table of contents

Employers are always looking for the best possible candidates in today’s competitive job market. However, some applicants may have criminal records that make them ineligible for certain positions. To be fair and hire the best-qualified candidates, it’s essential to follow Fair Chance Hiring guidelines. This article provides an overview of the policy and how to implement it in your organisation.

What Exactly are the Fair Chance Laws?

A Guide to Fair Chance Hiring for Employers

If you are an employer in the United States, you may wonder what “fair chance” laws are and whether or not you need to comply with them. In short, fair chance laws are regulations that aim to help people with criminal records find employment, regardless of their past offences. These guidelinges are also known as the Rehabilitation Act and laws vary from state to state. However, they all have one common goal: to provide opportunities for people who have made mistakes to overcome them and get back on their feet.

Below is a brief overview of some of the most common fair chance laws in the United States. If you are concerned that your company may need to comply with one or more of these laws, it is essential to consult with an attorney to get guidance on how to proceed.

The Rehabilitation Act protects employees who have committed crimes from being unfairly denied jobs or promotions because of their criminal records. The act also requires employers to provide reasonable opportunities for rehabilitation before considering any job application from a person with a criminal record.

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Typical requirements of fair hiring laws

Details of ban-the-box laws vary by jurisdiction. Some apply only to hiring for public-sector jobs, while others extend to all employers, public and private. Also, some rules exempt businesses with fewer than a certain number of employees (5, 10, 20, etc.). Remarkably, most ban-the-box laws share provisions along these lines:

  • Hiring companies must not ask about an applicant’s criminal history or run any criminal background checks until they consided the candidate’s qualifications.
  • Employers can only inquire about criminal histories after deciding that a candidate is running for a job. Some jurisdictions permit a background check only as part of a conditional employment offer. That is, with the understanding that the candidate will be offered the job upon completing the background check.
  • If convictions or imprisonment arises in a background check, many “ban the box” laws forbid employers from using that fact alone as grounds for refusing to hire a candidate. Employers must typically consider the offence’s nature and whether it conflicts with the requirements of the job in question.
  • Suppose an employer considers to refuse to hire an applicant due to their criminal background. In that case, the employer must tell the candidate in writing what they see as the deal-breaker in the applicant’s history. The candidate must then be allowed to correct any inaccuracies in the findings and address the employer’s concerns directly in a written response. The opportunity to address past missteps is one of the “fair chance” steps that gave these measures their names.

What is Criminal History Record Information (CHRI)?

Criminal history record information (CHRI) is a compilation of illegal arrests, charges, convictions and sentences for individuals over 18. CHRI can be used to evaluate an individual’s qualifications for a position and to make hiring decisions.

CHRI concludes criminal history information, arrest records and dispositions. Criminal history includes all information about an arrest or charge, such as the incident’s date, time, location and nature. Arrest records include comprehensive details on all arrests that law enforcement agencies across the country have made.

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Employers and fair practices for hiring

A Guide to Fair Chance Hiring for Employers 2022

Even though it’s essential to know the local laws, you don’t need the mandate to make internal changes. Organisations can grow talent pools and give people a career by changing their hiring stragegy. Let’s learn more about the fair chance hiring practices that companies use to hire people at all stages of the hiring process:

Recruiting

  • Include a statement about equal opportunity in job ads to make it clear that you won’t turn someone away because of their criminal history. Also, the person will feel better about applying for the job if they know the company is doing something about fair chance hiring.
  • Work with a sourcing partner to find fair-chance talent. Many sourcing partners in the U.S. work directly with fair-chance candidates to prepare them for the hiring process, through programs like job readiness courses and case management. Getting in touch with candidates is easy when you work with one of these sourcing partners.

Hiring

  • Interviewing based on skills. Because people with criminal records may have gaps in their resumes, interviews should focus on figuring out what skills they have rather than whether or not they have the “perfect” resume. This could be their willingness to learn, people skills, or ability to use computers.
  • “Ban the box” and background checks. Most “ban the box” policies require that questions about a person’s criminal history wait until a conditional offer has been made.
  • Nature-time-nature test. If criminal records come up during a background check, use the nature-time-nature test to determine how that criminal history relates to the job.

Retention

  • Do a quarterly audit. Ensure you follow local, state, or federal hiring laws to keep your business from being sued. At the same time, look at how you hire people internally to see where you can make changes.
  • Set goals: Set and track hiring metrics and report on those metrics often. If you’re not meeting your goals, figure out what’s getting in your way and how to get rid of it so you can make fundamental, measurable changes.
  • Make a promise to your employees: Fair chance hiring practices aren’t enough on their own. Focus on helping your employees if you want a strong workforce. If you don’t, your retention might go down, and you might lose talented people who could help your organisation.

Who has practised Fair Hiring Laws?

In fact, in the US, there is a successful campaign to support the practice of fair hiring laws, which is the “ban the box” campaign. “Ban the box” was the rallying cry of All of Us or None organisers. It means removing the box on a job application where you can check if you have a criminal record. Fair-chance policies do more than just delaying questions about criminal records until later in the hiring process.

Fair chance laws have been passed in three of the country’s largest cities:

  • San Francisco Fair Chance Ordinance. When it was first passed in 2014, the San Francisco Fair Chance Ordinance applied to all businesses with 20 workers. In October 2018, the law was changed to include all companies with five or more workers.
  • Los Angeles Fair Chance Initiative for Hiring. LA’s fair chance law is considered one of the country’s most thorough “ban the box” laws.
  • NYC Fair Chance Act. In 2015, the NYC Fair Chance Act was passed. The law applies to both public and private employers. It says that ads can’t say “no felonies,” and employers can’t ask job applicants about their criminal history.

Fair-chance policies have also been implemented in 37 states and over 150 cities, and counties. Fifteen states and many local governments use these methods for private employers and government contractors. Starbucks, Target, Walmart and Facebook have all removed the box inquiring after past convictions off their first job applications. The U.S. Equal Employment Opportunity Commission approved the policy, and President Obama ordered federal agencies to make it official.

Due to the success of these fair-chance policies, some cities and states expanded their scope to include private employers as well.

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How to Practice Fair Hiring Laws for Applicants with Criminal Records

When considering whether or not to hire an applicant with a criminal record, it is essential to be aware of the Fair Chance Initiative (FCI). The FCI is a national policy initiative that promotes fairness in hiring.

Under the FCI, an employer can conduct a criminal history check using a background check, a fingerprint-based criminal history check, or a search of public records. To comply with the FCI, employers must consider several factors when evaluating an applicant’s criminal history.

  • First and foremost, employers must consider whether the conviction occurred within the past seven years. If it did not, the employer could view the sentence regardless of when it happened.
  • Second, employers must determine whether the conviction is for a crime that would disqualify an individual from holding a particular position.
  • Finally, employers must consider any rehabilitation or treatment programs that have been completed.

Suppose you consider hiring an applicant with a criminal record. In that case, consulting an experienced employment law attorney is essential to understand your rights and responsibilities under the FCI.

Conclusion

There is no question that the criminal justice system has a lot of moving parts, and as such, mistakes are made. Fair chance hiring is one way to ensure that applicants with criminal records don’t lose out on jobs because of those past indiscretions. By following these simple steps, you can ensure your organisation hires qualified applicants and eliminates any chance of discrimination or unfairness.

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