For millions of Americans with criminal records, finding employment is critical for stability and rehabilitation. Yet many face significant barriers during hiring, often being automatically disqualified based solely on past mistakes. Fair Chance Acts—also known as “ban the box” laws—remove these obstacles by requiring employers to evaluate candidates based on qualifications before considering criminal history.
Fair Chance Act compliance means employers must: remove criminal history questions from initial job applications, delay background checks until later in the hiring process (often after conditional offers), conduct individualized assessments rather than blanket rejections, and provide specific notice procedures before making adverse hiring decisions based on criminal records.
At Nisar Law Group, we regularly advise employers on navigating these laws while maintaining effective hiring practices. This guide helps you understand Fair Chance Act compliance requirements, implementation strategies, and how to balance legal obligations with legitimate business needs.
Key Takeaways
- Fair Chance laws require employers to evaluate job candidates based on qualifications before considering criminal history information.
- Over 37 states and 150 cities/counties have adopted some form of Fair Chance legislation with varying requirements.
- Core compliance elements include removing “the box” from applications, delaying background checks, conducting individualized assessments, and following pre-adverse action procedures.
- New York employers face particularly stringent requirements under state and NYC Fair Chance laws.
- Non-compliance risks include discrimination claims, regulatory penalties, and potential Title VII liability.
- Beyond compliance, Fair Chance hiring expands talent pools and may qualify employers for federal tax credits up to $2,400 per eligible hire.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
What Are Fair Chance Laws and How Do They Work?
Fair Chance laws require employers to evaluate candidates based on their qualifications before considering criminal history information. The core principle: give candidates with criminal histories a fair opportunity to demonstrate their qualifications before addressing past convictions.
These laws generally aim to:
- Remove criminal history questions from initial job applications
- Delay criminal background checks until later in hiring
- Establish specific procedures for considering criminal records
- Prevent blanket policies that automatically reject any conviction history
The requirements vary significantly by jurisdiction, but the fundamental goal remains consistent—eliminating unnecessary barriers to employment for qualified individuals working to rebuild their lives after criminal justice involvement.
Research shows that automatic disqualification based on criminal records disproportionately impacts certain communities and creates barriers for those demonstrating rehabilitation. Fair Chance laws help qualified individuals secure employment while benefiting employers through access to a wider, often overlooked, talent pool.
How Has Fair Chance Legislation Evolved?
Fair Chance laws have expanded significantly in recent years, creating a complex patchwork of federal, state, and local requirements. Understanding which laws apply to your organization is essential for compliance.
What Federal Fair Chance Protections Exist?
The Fair Chance to Compete for Jobs Act of 2019 prohibits federal agencies and federal contractors from requesting criminal history information from job applicants until after making a conditional offer of employment. This law established nationwide standards for federal hiring practices and government contractors.
The Equal Employment Opportunity Commission (EEOC) provides guidance indicating that blanket policies excluding applicants based on any criminal record may violate Title VII of the Civil Rights Act when they disproportionately impact protected groups without a business necessity justification.
The EEOC’s enforcement guidance emphasizes that criminal history exclusions must be job-related and consistent with business necessity. Employers using criminal records in hiring decisions should conduct individualized assessments considering the nature of the offense, time elapsed, and job relevance.
What State and Local Fair Chance Laws Should Employers Know?
Currently, over 37 states and 150 cities and counties have adopted some form of Fair Chance legislation. These laws vary significantly in scope and requirements.
Comprehensive Fair Chance Laws exist in states like California, New York, and Illinois, affecting both public and private employers with detailed requirements for background check timing, individualized assessments, and notice procedures.
New York’s Fair Chance Act, applying to employers with four or more employees, prohibits criminal history inquiries until after a conditional offer. The law includes specific Article 23-A requirements for individualized assessments and detailed notice procedures. New York City’s Fair Chance Act contains even more stringent requirements, including a prohibition of most conviction-related questions during interviews.
Limited Fair Chance Laws apply in some jurisdictions only to public employers or government contractors, while others extend to private employers above certain size thresholds.
City and County Ordinances often impose additional requirements beyond state laws, particularly in major metropolitan areas. Multi-state employers face particular challenges navigating this regulatory patchwork.
When requirements differ across locations, companies typically need to either implement jurisdiction-specific processes or adopt comprehensive policies that satisfy the most stringent applicable laws. Many national employers choose to implement uniform “ban the box” policies across all locations for consistency and administrative simplicity, even where not specifically required by law.
What Are the Core Compliance Requirements?
While specific requirements vary by jurisdiction, most Fair Chance laws share fundamental compliance elements that employers must understand and implement.
Why Must Employers Remove Criminal History Questions from Applications?
The defining feature of Fair Chance laws is prohibiting the checkbox or question about criminal history on job applications—the “box” in “ban the box.” This allows candidates to be considered based on their qualifications before criminal history becomes a factor.
Compliance requires:
- Reviewing and revising all job application materials to remove criminal history questions
- Training hiring managers not to inquire about criminal history during initial interviews
- Ensuring third-party application systems comply with applicable laws
- Updating electronic application platforms to remove prohibited fields
Even seemingly neutral questions like “Have you ever been convicted of a crime?” violate Fair Chance requirements in covered jurisdictions. Applications must focus solely on qualifications, experience, and job-related criteria during initial screening.
When Can Employers Conduct Criminal Background Checks?
Most Fair Chance laws specify when in the hiring process criminal history information can be considered. Typical requirements include:
- Waiting until after the initial interview to inquire about criminal history
- Delaying background checks until after a conditional offer of employment
- Obtaining explicit written consent before conducting any background check
- Following Fair Credit Reporting Act (FCRA) disclosure and authorization procedures
The timing requirements vary significantly by jurisdiction. Hawaii allows background checks only after a conditional offer, while some other states permit them after the initial interview. New York requires employers to wait until after making a conditional offer before asking about or conducting criminal background checks.
Employers must determine which jurisdictions’ laws apply based on where the position is located, where the candidate resides, and where the work will be performed. When multiple jurisdictions potentially apply, following the most restrictive requirement ensures compliance.
What Is the Individualized Assessment Requirement?
When a criminal record is discovered, most Fair Chance laws prohibit automatic disqualification. Instead, employers must conduct an individualized assessment considering specific factors:
Nature and Gravity of Offense(s): Not all convictions carry equal weight. A theft conviction may be highly relevant for a financial position but less so for a construction role. Employers must consider how the specific offense relates to job responsibilities.
Time Elapsed: How long has passed since the conviction or completion of the sentence? A 15-year-old conviction carries a different weight than one from last year. Many jurisdictions give specific guidance on lookback periods.
Nature of Job Sought: What are the actual responsibilities and requirements of the position? The assessment must focus on specific job duties, not generalized concerns.
Evidence of Rehabilitation: Has the candidate demonstrated rehabilitation through education, employment history, community service, or other positive factors? New York’s Article 23-A specifically requires consideration of rehabilitation evidence.
This assessment must be documented and cannot rely on arbitrary exclusions based on conviction type without consideration of individual circumstances and specific job relevance. The assessment should result in a written analysis explaining the reasoning for any adverse decision.
What Procedures Must Employers Follow Before Adverse Actions?
When considering rejecting a candidate based on criminal history, Fair Chance laws typically require specific notification procedures giving candidates a meaningful opportunity to provide context, correct inaccuracies, or demonstrate rehabilitation before final decisions.
Employers must typically:
- Provide written preliminary adverse action notice
- Share a copy of the background check results
- Identify specific convictions that may disqualify the candidate
- Explain the reasoning for potential disqualification
- Allow time for the candidate to respond (typically 3-10 business days, depending on jurisdiction)
- Consider evidence of rehabilitation or record inaccuracies provided by the candidate
- Make a final determination only after this process
In New York, employers must provide a written “Article 23-A Analysis” explaining how they considered the required factors before making an adverse decision. The candidate must have at least five business days to respond with additional information.
What Final Decision and Notice Requirements Apply?
After completing the individualized assessment and considering any information provided by the candidate, employers making adverse decisions must typically:
- Provide final written notice of the decision
- Include information about any appeal or dispute processes available under applicable law
- Comply with additional Fair Credit Reporting Act requirements if using third-party background check providers
- Maintain documentation of the entire process for potential future challenges
Documentation should include the individualized assessment, all communications with the candidate, information received from the candidate, and the final decision rationale. This documentation provides essential protection if hiring decisions are later challenged through regulatory complaints or litigation.
How Should Employers Implement Fair Chance Compliance?
Complying with Fair Chance laws requires thoughtful implementation strategies. Based on our experience helping employers develop compliant processes, we recommend a comprehensive approach.
How Do You Revise Hiring Materials and Procedures?
Begin by conducting a comprehensive review of all hiring materials:
- Job applications (paper and electronic)
- Job postings and recruitment materials
- Interview guides and questionnaires
- Conditional offer letters
- Background check authorization forms
- Pre-adverse and adverse action notice templates
Revise these materials to remove prohibited inquiries and incorporate appropriate timing for criminal history discussions based on applicable laws. Ensure that application tracking systems prevent premature criminal history inquiries and that all personnel understand when these discussions are permitted.
How Do You Develop Clear Assessment Guidelines?
Create structured guidelines for evaluating criminal history information that:
- Define job-related criteria for considering different types of offenses
- Establish documentation procedures for individualized assessments
- Incorporate relevant factors from applicable Fair Chance laws (especially New York’s Article 23-A factors)
- Provide templates for consistent evaluation and decision-making
- Include examples of how to assess different offense-job combinations
A structured approach helps ensure consistent, defensible decisions while reducing the risk of unconscious bias affecting the process. Templates and decision trees can help hiring managers apply consistent standards across all candidates.
How Do You Train Hiring Personnel Effectively?
Proper training is perhaps the most critical implementation element. All personnel involved in hiring should understand:
- Requirements of applicable Fair Chance laws
- Proper timing for criminal history inquiries
- How to conduct legally compliant interviews without prohibited questions
- The individualized assessment process and required factors
- Documentation requirements and best practices
- Communication protocols with candidates throughout the process
Scenario-based training where hiring managers practice applying Fair Chance requirements to realistic situations is particularly effective in helping them internalize compliant practices. Regular refresher training helps maintain compliance as personnel changes occur and laws evolve.
How Do You Coordinate with Background Check Providers?
If you use third-party background check services, ensure they understand your obligations under applicable Fair Chance laws. This may include:
- Adjusting the timing of background checks to comply with applicable requirements
- Modifying reporting formats to facilitate individualized assessment
- Implementing proper authorization and disclosure procedures
- Coordinating pre-adverse and adverse action notices
- Providing guidance on lookback periods and reportable convictions
Many background check providers now offer Fair Chance compliance features, but the ultimate compliance responsibility remains with the employer. Contracts with background check vendors should specify compliance requirements and establish responsibility for various compliance elements.
How Do You Implement Consistent Documentation Practices?
Develop systems for documenting Fair Chance compliance throughout the hiring process:
- Records of when criminal history was first considered
- Individualized assessments of criminal history information with all required factors
- All communications with candidates about criminal history information
- Information provided by candidates in response to preliminary adverse action notices
- Final hiring decisions and their documented justifications
This documentation provides essential protection if hiring decisions are later challenged through EEOC complaints, state agency investigations, or litigation. Centralized documentation systems help ensure consistency and completeness.
What Are the Business Benefits Beyond Compliance?
Beyond legal compliance, Fair Chance hiring practices offer significant business benefits worth considering as part of your talent acquisition strategy.
How Does Fair Chance Hiring Expand Your Talent Pool?
With an estimated 70 million Americans having some form of criminal record, Fair Chance hiring substantially expands your potential talent pool. This is particularly valuable in today’s competitive labor market, where many industries face persistent worker shortages.
Many individuals with criminal records possess valuable skills, experience, and qualifications that would otherwise be overlooked through automatic screening. Fair Chance hiring allows employers to identify these qualified candidates who might strengthen their workforce.
How Does Fair Chance Hiring Enhance Diversity and Inclusion?
Because the criminal justice system disproportionately impacts certain communities, Fair Chance hiring can significantly enhance workforce diversity. Organizations committed to diversity, equity, and inclusion goals often find Fair Chance hiring aligns with and advances these objectives.
Removing barriers that disproportionately affect specific demographic groups helps create more equitable hiring practices and can broaden workforce perspectives and experiences.
What Does Research Show About Employee Loyalty and Retention?
Research indicates that employees with criminal records often demonstrate stronger loyalty and lower turnover rates. A Society for Human Resource Management study found that 82% of managers and two-thirds of HR professionals feel that workers with criminal records perform equal to or better than employees without records.
Employees who receive fair consideration despite past mistakes often show greater commitment to employers who gave them an opportunity. This can translate to reduced turnover costs and increased employee engagement.
What Tax Incentives Are Available?
Employers hiring people with criminal records may qualify for the Work Opportunity Tax Credit (WOTC), which provides federal tax credits up to $2,400 per eligible employee. Some states offer additional incentives for employers who hire individuals with criminal records.
These incentives can help offset hiring and training costs while supporting community reintegration efforts. Employers should consult with tax advisors to understand eligibility requirements and application procedures.
How Does Fair Chance Hiring Support Corporate Social Responsibility?
Fair Chance hiring supports community reintegration and reduces recidivism, aligning with corporate social responsibility goals. Employment is one of the strongest factors in reducing criminal recidivism, making employer participation in Fair Chance hiring a meaningful contribution to community welfare.
Many companies now actively highlight their Fair Chance hiring practices in sustainability and social impact reporting, recognizing the broader societal benefits of providing employment opportunities to individuals with criminal records.
What Are Common Compliance Challenges and Solutions?
Even with the best intentions, employers often encounter challenges implementing Fair Chance practices. Here are effective solutions to common issues.
How Do You Handle Multi-Jurisdiction Compliance?
Many employers operate across multiple jurisdictions with varying Fair Chance requirements, creating complexity in designing compliant processes.
Solution: Consider adopting the most stringent requirements across all jurisdictions for consistency. Alternatively, implement location-specific processes carefully managed through human resources information systems (HRIS). Regularly audit practices to ensure ongoing compliance as laws evolve.
Document which jurisdictions’ laws apply to each position and establish clear protocols for determining applicable requirements. Training should address both general Fair Chance principles and jurisdiction-specific variations.
How Do You Ensure Third-Party Recruitment Compliance?
When using external recruitment or staffing firms, ensuring their compliance with Fair Chance laws can be difficult.
Solution: Include specific Fair Chance compliance requirements in contracts with staffing providers. Require regular compliance certifications and periodically audit their practices. Remember that using third parties generally doesn’t relieve employers of compliance responsibilities.
Contracts should specify that staffing firms will not ask about or consider criminal history until the appropriate stage of the hiring process and will follow all applicable Fair Chance law requirements.
How Do You Manage Conditional Offers?
In jurisdictions requiring background checks only after conditional offers, managing candidate expectations can be challenging if criminal history later becomes disqualifying.
Solution: Clearly communicate the conditional nature of offers and the background check process to candidates. Develop clear, consistent language for conditional offers that explains the process while maintaining compliance with applicable laws.
Conditional offer letters should specify that the offer is contingent on satisfactory completion of a background check (where permitted by law) and that the employer will follow Fair Chance Act procedures if concerns arise from the background check.
How Do You Balance Safety Concerns with Compliance?
Some positions involve particular safety concerns or legal restrictions on hiring individuals with certain convictions.
Solution: Identify positions with legitimate business necessity or legal requirements that restrict hiring individuals with specific convictions. Document these restrictions with specific rationales tied to job functions. Be prepared to demonstrate how these restrictions are job-related and consistent with business necessity.
Safety concerns must be specific to the position and supported by objective analysis. Generalized safety concerns typically won’t satisfy legal requirements for criminal history exclusions.
How Do You Prevent Inconsistent Decision-Making?
Without clear guidelines, different hiring managers may evaluate criminal history inconsistently, creating compliance risks.
Solution: Develop detailed assessment matrices for common conviction types that provide guidance on relevance to different positions. Centralize final decision-making for candidates with criminal histories or implement review processes to ensure consistency.
A compliance team or designated personnel with specialized training can review all individualized assessments before final decisions to ensure consistent application of standards and proper documentation.
What Legal Considerations Extend Beyond Fair Chance Acts?
While complying with Fair Chance laws is essential, employers should also consider broader legal frameworks affecting the use of criminal history information in employment decisions.
How Does Title VII Affect Criminal History Policies?
The EEOC’s guidance on criminal records emphasizes that blanket exclusions based on criminal history may create disparate impact based on race and national origin, potentially violating Title VII of the Civil Rights Act.
To avoid liability, employers should:
- Ensure criminal history exclusions are job-related and consistent with business necessity
- Conduct individualized assessments even when not specifically required by local Fair Chance laws
- Document the connection between specific criminal conduct and risks inherent to specific positions
- Avoid policies that disproportionately screen out protected groups without justification
The EEOC may investigate employer practices even in the absence of individual complaints if policies appear to create systemic disparate impact. Proactive compliance with Title VII principles reduces this risk.
What Fair Credit Reporting Act Requirements Apply?
When using third-party background check providers, employers must comply with the FCRA’s requirements, including:
- Obtaining written authorization before conducting background checks
- Providing a clear and conspicuous disclosure that a background check may be obtained
- Providing pre-adverse action notices with copies of background reports
- Allowing a reasonable time to dispute information before final decisions
- Providing adverse action notices with required FCRA information
These FCRA requirements apply alongside Fair Chance law obligations, creating a complex compliance landscape. Some jurisdictions impose additional state-specific background check requirements beyond federal FCRA mandates.
What Industry-Specific Restrictions Should Employers Know?
Certain industries have statutory or regulatory restrictions on employing individuals with criminal records. These include:
- Financial services: Restrictions under FDIC rules and the SAFE Act
- Healthcare: Restrictions under various state laws and federal regulations
- Education: Restrictions on working with minors
- Transportation: DOT and TSA requirements
- Government contracting: Security clearance requirements
When statutory restrictions exist, employers may have exceptions from certain Fair Chance requirements, but these must be carefully documented and consistently applied. Position-specific restrictions should be clearly identified during the job description development process.
What Are the Best Practices for Fair Chance Compliance?
Based on our experience helping employers implement Fair Chance policies, we recommend these best practices for maintaining ongoing compliance.
How Often Should You Conduct Compliance Audits?
Regularly review job applications, interview procedures, and hiring practices to ensure ongoing compliance. As laws evolve, compliance requirements change, necessitating periodic reassessment.
Quarterly or semi-annual audits can identify potential compliance gaps before they result in violations. Audits should review both policies and actual practices, including a sampling of hiring documentation to ensure procedures are being followed consistently.
Should You Centralize Criminal Background Assessments?
Consider having a centralized team make final decisions about candidates with criminal histories to ensure consistent application of standards across the organization. This team should receive specialized training on applicable laws and assessment methodologies.
Centralization promotes consistency, reduces liability risks, and ensures that personnel with specialized expertise handle these sensitive determinations. This approach also facilitates better documentation and quality control.
Why Is Documentation So Critical?
Maintain thorough records of all individualized assessments, including:
- The specific criminal history considered
- The relationship between the conviction and job duties
- Consideration of time elapsed and rehabilitation evidence
- The reasoning behind the final determination
- All communications with the candidate throughout the process
This documentation provides crucial protection in case of agency investigations or litigation. Documentation should be detailed enough that a third party could understand the decision-making process and rationale without additional explanation.
How Do You Develop Assessment Matrices for Efficiency?
Create guidance documents that help hiring managers understand how different types of convictions relate to various positions in your organization. These matrices can streamline decision-making while ensuring consistency and compliance.
For example, matrices might provide guidance on how theft offenses relate to positions with financial responsibilities, how violence offenses relate to positions with vulnerable population contact, and how drug offenses relate to positions with controlled substance access.
How Often Should Training Occur?
Conduct regular training for all personnel involved in hiring:
- Initial comprehensive training on Fair Chance requirements
- Periodic refreshers as laws change
- Specialized training for those conducting individualized assessments
- Scenario-based sessions addressing complex situations
- Updates when new jurisdictions adopt Fair Chance laws or existing laws change
Training should be documented, and personnel should acknowledge their understanding of compliance requirements. New hiring personnel should complete training before participating in hiring decisions.
Why Should You Engage with Community Resources?
Connect with local workforce development organizations and reentry programs that specialize in supporting people with criminal records. These organizations can provide:
- Valuable resources for employers
- Candidate referrals
- Ongoing support to both employers and employees
- Training on working effectively with individuals with criminal records
- Information about available tax credits and incentives
Building relationships with these organizations can improve hiring outcomes and provide support structures that benefit both employers and employees.
Should You Consider Voluntary Ban the Box Practices?
Even in jurisdictions without Fair Chance laws, consider voluntarily implementing “ban the box” principles. This approach can:
- Expand your talent pool
- Support diversity goals
- Prepare your organization for possible future legislation
- Demonstrate corporate social responsibility
- Improve employer brand among job seekers
Many employers find that voluntary Fair Chance policies yield significant benefits even absent legal requirements. Early adoption also positions organizations ahead of potential future legislative changes.
Conclusion: Transforming Compliance into Competitive Advantage
Fair Chance laws represent more than just regulatory compliance requirements—they provide an opportunity to access untapped talent while advancing social equity goals. Employers who effectively implement Fair Chance hiring practices often find they gain competitive advantages in recruitment while contributing meaningfully to their communities.
The complexity of Fair Chance compliance, particularly for multi-state employers, requires careful attention to varying jurisdictional requirements and thoughtful implementation of consistent processes. However, the effort invested in compliance typically yields returns beyond avoiding legal liability.
By viewing Fair Chance compliance as a strategic opportunity rather than merely a legal obligation, employers can transform regulatory requirements into talent acquisition advantages. The expanded candidate pool, enhanced diversity, improved retention, and available tax incentives can all contribute to organizational success while supporting important social goals.
At Nisar Law Group, we work with employers to develop compliant, effective Fair Chance hiring programs that balance legal requirements with business needs. When implemented thoughtfully, these programs can transform compliance obligations into strategic advantages.
If you have questions about Fair Chance Act compliance or need assistance developing appropriate policies and procedures, contact Nisar Law Group for a consultation. Our employment law team can help you navigate this complex and evolving area while minimizing legal risks and maximizing the benefits of inclusive hiring practices.
Frequently Asked Questions About Fair Chance Act Compliance
The Fair Chance Act refers to laws that require employers to delay criminal background inquiries and checks until later in the hiring process. These “ban the box” laws prohibit employers from asking about criminal history on initial job applications, require individualized assessment of criminal records rather than automatic disqualification, and establish specific procedures employers must follow before making adverse hiring decisions based on criminal history. The specific requirements vary by jurisdiction, with federal, state, and local versions of Fair Chance laws. The federal Fair Chance to Compete for Jobs Act applies to federal agencies and contractors, while states like California, New York, and Illinois have comprehensive Fair Chance laws affecting private employers.
FCR typically stands for “Fair Credit Reporting” in the context of background checks, referring to compliance with the Fair Credit Reporting Act (FCRA). The FCRA is a federal law regulating how consumer reporting agencies collect and use information, including for employment background checks. FCR/FCRA compliance requires employers to provide clear disclosure that a background check will be conducted, obtain written authorization from the candidate, give pre-adverse action notice with a copy of the report if considering rejection based on the report, allow time for the candidate to dispute inaccuracies, and provide final adverse action notice if proceeding with rejection. These FCRA requirements apply alongside any applicable Fair Chance Act requirements, creating overlapping but distinct compliance obligations.
An FCRA-compliant background check is one that follows all Fair Credit Reporting Act requirements when using consumer reports for employment purposes. This means providing standalone disclosure that a background check will be obtained (not buried in other documents), obtaining clear written authorization from the candidate before conducting the check, ensuring the background check company is an FCRA-compliant consumer reporting agency, providing pre-adverse action notice with copy of the report and FCRA summary of rights if considering rejection, allowing reasonable time (typically 5 business days) for the candidate to dispute information, and providing final adverse action notice with required information if proceeding with rejection. FCRA compliance applies regardless of whether Fair Chance Act laws also apply, though employers must coordinate both sets of requirements when applicable.
While Fair Chance laws have reduced blanket bans on hiring individuals with felony convictions, certain positions legally restrict hiring people with specific criminal histories. Industries with common restrictions include financial services (felony convictions for financial crimes may disqualify candidates under FDIC rules), healthcare (convictions related to patient abuse, drug diversion, or violence may prevent licensure), education (convictions involving minors typically disqualify candidates for positions working with children), transportation (certain felonies prevent commercial driver licensing or TSA security clearances), and government positions requiring security clearances. However, even in these industries, restrictions must be job-specific, not blanket bans on all felonies. New York law requires individualized assessment even where restrictions exist, focusing on the specific offense’s relationship to job duties rather than categorical exclusions.
Over 37 states have adopted some form of Fair Chance or “ban the box” legislation, though requirements vary significantly. States with comprehensive Fair Chance laws affecting private employers include California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. New York has particularly extensive Fair Chance protections under both state and New York City law. Many other states have Fair Chance laws applying only to public employers or government contractors. Additionally, over 150 cities and counties have local Fair Chance ordinances, often with more stringent requirements than state law. Multi-state employers should verify requirements in each jurisdiction where they operate, as laws continue to evolve and expand.
If issues arise during background verification (BGV), employers following Fair Chance Act procedures must conduct an individualized assessment rather than automatic rejection. The process typically includes receiving preliminary notice identifying concerns from the background check, having the opportunity to provide context or evidence of rehabilitation, reviewing the employer’s individualized assessment of the conviction’s relevance to the job, and receiving final notice if the employer decides to proceed with rejection. In New York, you’re entitled to see the employer’s Article 23-A analysis explaining how they considered required factors like the offense nature, time elapsed, job relevance, and rehabilitation evidence. If you believe you were wrongly rejected based on your criminal history, you may have legal recourse through EEOC complaints, state human rights agency complaints, or potentially litigation for violation of Fair Chance laws or discriminatory practices.
A “red flag” in a background check is information that raises concerns about a candidate’s suitability for a position, though this doesn’t automatically disqualify them under Fair Chance laws. Common red flags include recent criminal convictions (particularly those related to job duties), a pattern of criminal activity showing ongoing issues, violent offenses for positions involving vulnerable populations, theft or fraud convictions for positions with financial responsibilities, discrepancies between application information and background check results, or unexplained employment gaps. However, Fair Chance laws require employers to conduct individualized assessments of any red flags, considering factors like time elapsed, evidence of rehabilitation, and specific job relevance rather than making automatic disqualification decisions. What constitutes a disqualifying red flag varies based on the specific position’s requirements and responsibilities.
Employers should notify you of background check results, particularly if they’re considering adverse action. Signs you passed include receiving a job offer without caveats (after background check completion), being asked to complete onboarding paperwork or attend new hire orientation, receiving a start date notification, or not receiving any pre-adverse action notice within a reasonable time after the check. If concerns arise, you’ll typically receive a pre-adverse action notice identifying issues, a copy of the background report, and information about your right to dispute inaccuracies. Under Fair Chance laws, you should also receive an individualized assessment if a criminal history is discovered. If you haven’t heard anything within 2-3 weeks of providing background check authorization, it’s appropriate to follow up with the employer about the status.
The FCRA imposes time limits on certain types of information in consumer reports for employment purposes. Criminal convictions can be reported indefinitely under federal law (no time limit for conviction records), though some states impose restrictions. Arrests that did not lead to convictions can be reported for only seven years. Civil suits and judgments have a seven-year reporting limit, as do tax liens and most other adverse information. Bankruptcy information can be reported for 10 years. However, these are federal baseline standards—many states impose more restrictive lookback periods. Additionally, Fair Chance laws may require employers to consider whether older convictions remain relevant to employment decisions. Some jurisdictions limit how far back employers can legally consider criminal history, particularly for less serious offenses.
