The U.S. has the second-highest prison population in the world, with over 1.6 million people behind bars. After paying their debt to society, many of these Americans struggle to get jobs. A 2021 report by the Bureau of Justice Statistics (BJS) highlights that out of over 50,000 people released from prison, 33% didn’t find employment until four years after.
To help address their plight, the federal government, 37 states, and 150 cities have introduced Fair Chance laws. This legislation might make it easier for employers to tap into a substantial and mostly ignored labor pool.
So, what are fair chance laws? And what do they mean for your company? In this article, we’ll explain state and federal fair chance laws and share tips for fair chance hiring to ensure your company stays compliant.
Contact us if you’re interested in getting help with maintaining compliance with new and old laws.
What are Fair Chance Laws?
Fair chance laws require employers to consider candidates’ competence through their application and interview before enquiring about convictions. Employers are only permitted to ask about criminal history and undertake a criminal background check after making a conditional offer to the applicant. If the candidate has a criminal record, the employer can decide whether this information affects the job offer.
The federal government and around 37 states, like California, Illinois, and Washington, have adopted fair chance laws. Also, 150 cities, including Austin, Chicago, and Philadelphia, have enacted fair chance legislation. This number will likely increase. That said, it may be prudent to implement fair chance hiring practices to ensure compliance with any (future) legislation.
Also, being a fair employer can positively impact your business by:
Giving your company a competitive edge – with over 1.7 unfilled positions for every job seeker, hiring people with a criminal record will give you access to more talent.
Increasing the odds of high retention – in a recent trial by Toyota and Kelly services, where they hired second-chance workers to work at Toyota’s plant, the car manufacturer improved their turnover rate by 70%.
Diversifying your employee base – companies employing workers with criminal records will include people from various backgrounds, socioeconomic statuses, and education levels. This opens the door for new perspectives and innovation.
States with Fair Chance Laws
A growing number of states are passing fair chance laws. The following states have adopted fair chance hiring legislation applying to public sector jobs.
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Arizona
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California
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Colorado
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Connecticut
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Delaware
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Georgia
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Hawaii
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Illinois
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Indiana
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Kansas
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Kentucky
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Louisiana
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Maine
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Maryland
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Massachusetts
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Michigan
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Minnesota
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Missouri
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Nebraska
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Nevada
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New Hampshire
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New Jersey
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New Mexico
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New York
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North Carolina
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North Dakota
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Ohio
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Oklahoma
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Oregon
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Pennsylvania
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Rhode Island
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Tennessee
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Utah
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Vermont
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Virginia
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Washington
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Wisconsin
Also, 15 states and 22 cities have extended their laws to private employers. This map further details current state laws. Let’s examine a few more closely.
California Fair Chance Act
In 2018, California enacted laws that prohibit most public & private employers with over five employees from:
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Including questions on application forms about conviction history.
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Asking about candidates’ criminal records before they issue conditional job offers.
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Considering information about:
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participation in pre-trial or post-trial diversion programs,
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arrests not followed by convictions,
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convictions that were sealed, dismissed, expunged, or statutorily eradicated.
Washington Fair Chance Act
Washington enacted laws in 2018 that aim to protect justice-involved job applicants so they may fairly compete for job opportunities.
Employers may not:
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Exclude people with criminal records on job ads.
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Include questions on a job application seeking information about applicants’ criminal records.
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Enquire or receive information about a criminal history or do a background check before a conditional job offer.
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Implement policies to exclude justice-involved job applicants.
Illinois Employee Background Fairness Act
In 2021, Illinois enacted this law, which makes it a civil rights violation for employers to use a criminal record in any employment decision unless:
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There is a substantial relationship between the offense and the job.
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Taking on a candidate with a record would involve a reasonable risk to property, the general public, or an individual.
Additionally, various states have implemented Clean Slate Laws. This legislation is designed to remove, seal, or expunge underlying criminal history. Clean slate laws are expanding. Legislation varies but includes non-convictions, marijuana-related offenses, and permitting expungements of dismissed records. Here are a few examples:
Arizona
Starting on January 1, 2023, Arizona began accepting petitions to have criminal records expunged under certain conditions and after a certain period had passed.
For example, the following people can apply:
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People who have completed all terms of their sentences (including paying restitution, fees, and fines.
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All persons charged with a criminal offense but with either a dismissed charge or a not-guilty verdict at trial.
And many more.
Colorado
Effective in 2025, nearly all but the most serious felonies will be automatically sealed after the following:
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Four years for a civil infraction,
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seven years for petty offenses or misdemeanors,
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ten years for eligible felonies.
Also, eligible non-conviction records will be sealed immediately.
Federal Fair Chance Laws
Many potential workers could be excluded from joining the workforce if it wasn’t for fair chance laws.
Below are a few federal laws to be aware of.
Title VII of the Civil Rights Act of 1964
While this federal act does not explicitly protect justice-involved applicants from discrimination, it does protect against discrimination based on race, sex, religion, and ethnicity.
Ban the Box
In 2015, President Obama endorsed ‘ban the box’ by directing federal agencies to delay asking job applicants about their criminal records until later in the hiring process.
Fair Chance to Compete for Jobs Act of 2019
As part of the National Defense Authorization Act, the Fair Chance to Compete for Jobs Act of 2019 became law in 2021.
It prohibits most federal agencies and contractors from investigating a candidate’s possible arrest and conviction record until after issuing a conditional job offer. In 2016 the White House introduced the Fair Chance Business Pledge to encourage private employers to hire fairly. Companies like American Airlines, Google, and Starbucks have all signed on.
Tips for Fair Chance Hiring
Considering between 70 to 100 million Americans possess a criminal record, there could be more talent to tap into if your business considers fair chance hiring. How?
Follow these tips:
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Avoid stigmatizing terms such as “ex-felons;” instead, use “people with records.”
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If not required by law, remove self-reporting questions. They leave too much room for error.
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Add an equal opportunity statement on the application form to explain you won’t automatically disqualify applicants with a record.
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Ban the box: only inquire about criminal history after you make a provisional offer.
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When the background check reveals a record, only factor in convictions related to job duties.
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Consider how much time has elapsed since the conviction.
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Train HR staff in the complexities of the legislation.
Key Takeaway
Fair chance laws require employers to consider candidates’ competence over convictions. This means employers are prohibited from asking candidates about convictions or running background checks before issuing conditional job offers. Compliance with these laws means more talent for employers, but with so many acts, legislation is complex.
This is where Asure can help. If you’d like to speak to an HR expert about your business, connect with us.