For millions of Americans with criminal records, finding employment represents a critical step toward stability and rehabilitation. Yet many face significant barriers during the hiring process, often being automatically disqualified based solely on past mistakes. Fair Chance Acts—also known as “Ban the Box” laws—address this challenge by removing obstacles to employment for qualified individuals with criminal histories.
At Nisar Law Group, we regularly advise employers on navigating these important laws while maintaining effective hiring practices. This article helps you understand Fair Chance Act compliance, implementation strategies, and how to balance legal obligations with legitimate business needs.
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.
Understanding Fair Chance Laws: The Basics
Fair Chance laws require employers to evaluate candidates based on their qualifications before considering criminal history information. These laws generally aim to remove criminal history questions from initial job applications, delay background checks until later in the hiring process, establish specific procedures for considering criminal records, and prevent blanket policies that automatically reject applicants with any conviction history.
While specific requirements vary by jurisdiction, the core principle remains consistent: give candidates with criminal histories a fair opportunity to demonstrate their qualifications before addressing past convictions.
These laws recognize that automatic disqualification based on criminal records disproportionately impacts certain communities and creates unnecessary barriers to employment for those working to rebuild their lives. By removing these barriers, Fair Chance laws help qualified individuals secure employment while benefiting employers through access to a wider talent pool.
The Evolving Landscape of Fair Chance Legislation
Fair Chance laws have expanded significantly in recent years, with variations across federal, state, and local jurisdictions. Understanding which laws apply to your organization is essential for compliance.
Federal Fair Chance Protections
At the federal level, 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 represents an important step in establishing nationwide standards for fair hiring practices.
Additionally, 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 business necessity justification.
State and Local Fair Chance Laws
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 the timing of background checks, individualized assessments, and notice procedures.
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. For example, New York City’s Fair Chance Act contains some of the most stringent requirements in the nation.
Multi-state employers face particular challenges navigating this patchwork of regulations. 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.
We’ve observed that many national employers ultimately choose to implement uniform “ban the box” policies across all locations for consistency and administrative simplicity, even in jurisdictions where not specifically required by law.
Core Compliance Requirements
While specific requirements vary by jurisdiction, most Fair Chance laws share these fundamental compliance elements:
1. Removing Criminal History Questions from Initial 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 in this area 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, and ensuring third-party application systems comply with applicable laws.
2. Delaying 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, and obtaining explicit consent before conducting any background check.
The timing requirements vary significantly by jurisdiction. For example, Hawaii allows background checks only after a conditional offer, while some other states permit them after the initial interview.
3. Individualized Assessment Requirements
When a criminal record is discovered, most Fair Chance laws prohibit automatic disqualification. Instead, employers must conduct an individualized assessment considering factors such as:
- The nature and gravity of the offense(s)
- The time elapsed since the conviction or completion of sentence
- The nature of the job sought and the relevance of the conviction to job duties
- Evidence of rehabilitation or mitigating circumstances
This assessment must be documented and cannot rely on arbitrary exclusions based on conviction type without consideration of individual circumstances and job relevance.
4. Pre-Adverse Action Procedures
When considering rejecting a candidate based on criminal history, Fair Chance laws typically require specific notification procedures. These procedures give candidates meaningful opportunity to provide context, correct inaccuracies, or demonstrate rehabilitation before a final decision is made.
Employers must typically provide written notice of the preliminary decision, share a copy of the background check results, identify the specific convictions that may disqualify the candidate, explain the reasoning for the potential disqualification, allow time for the candidate to respond (typically 3-10 business days), and consider evidence of rehabilitation or inaccuracies in the record.
5. Final Decision and Notice Requirements
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, and comply with additional requirements of the Fair Credit Reporting Act if using a third-party background check provider.
Documentation of the entire process, including the individualized assessment and communications with the candidate, should be maintained in case of future challenges.
Implementation Strategies for Employers
Complying with Fair Chance laws requires thoughtful implementation strategies. Based on our experience helping employers develop compliant processes, we recommend:
Revising Hiring Materials and Procedures
Begin by conducting a comprehensive review of all hiring materials, including job applications (paper and electronic), job postings and recruitment materials, interview guides and questionnaires, conditional offer letters, background check authorization forms, and 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.
Developing Clear Assessment Guidelines
Create structured guidelines for evaluating criminal history information that defines job-related criteria for considering different types of offenses, establish documentation procedures for individualized assessments, incorporate relevant factors from applicable Fair Chance laws, and provide templates for consistent evaluation and decision-making.
A structured approach helps ensure consistent, defensible decisions while reducing the risk of unconscious bias affecting the process.
Training Hiring Personnel
Proper training is perhaps the most critical implementation element. All personnel involved in hiring should understand the requirements of applicable Fair Chance laws, the proper timing for criminal history inquiries, how to conduct legally compliant interviews, the individualized assessment process, documentation requirements, and communication protocols with candidates.
We’ve found that scenario-based training where hiring managers practice applying Fair Chance requirements to realistic situations is particularly effective in helping them internalize compliant practices.
Coordinating 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, modifying reporting formats to facilitate individualized assessment, implementing proper authorization and disclosure procedures, and coordinating pre-adverse and adverse action notices.
Many background check providers now offer Fair Chance compliance features, but the ultimate compliance responsibility remains with the employer.
Implementing Consistent Documentation Practices
Develop systems for documenting Fair Chance compliance, including records of when in the process criminal history was considered, individualized assessments of criminal history information, communications with candidates about criminal history information, and final hiring decisions and their justifications.
This documentation provides essential protection if hiring decisions are later challenged.
Business Impact and Benefits of Fair Chance Hiring
Beyond legal compliance, Fair Chance hiring practices offer significant business benefits worth considering:
Expanded 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.
Enhanced 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.
Workforce Loyalty and Retention
Research indicates that employees with criminal records often demonstrate stronger loyalty and lower turnover rates. A study by the Society for Human Resource Management 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.
Tax Incentives and Benefits
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. Additional state-level incentives may also be available.
Corporate Social Responsibility
Fair Chance hiring supports community reintegration and reduces recidivism, aligning with corporate social responsibility goals. Many companies now actively highlight their Fair Chance hiring practices in sustainability and social impact reporting.
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:
Challenge: Multi-Jurisdiction Compliance
Many employers operate across multiple jurisdictions with varying Fair Chance requirements. This creates complexity in designing compliant processes.
Solution: Consider adopting the most stringent requirements across all jurisdictions for consistency, or implement location-specific processes carefully managed through HRIS systems. Regularly audit practices to ensure ongoing compliance as laws evolve.
Challenge: Third-Party Recruitment and Staffing Firms
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.
Challenge: Managing 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.
Challenge: Balancing Safety and 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.
Challenge: 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 history or implement review processes to ensure consistency.
Legal Considerations 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:
Title VII and Disparate Impact
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, and document the connection between specific criminal conduct and risks inherent to specific positions.
Fair Credit Reporting Act (FCRA)
When using third-party background check providers, employers must comply with the FCRA’s requirements, including obtaining written authorization before conducting background checks, providing pre-adverse action notices with copies of background reports, allowing reasonable time to dispute information before final decisions, and providing adverse action notices with required FCRA information.
These requirements apply alongside Fair Chance law obligations, creating a complex compliance landscape.
Industry-Specific Restrictions
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), and 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.
Best Practices for Fair Chance Compliance
Based on our experience helping employers implement Fair Chance policies, we recommend these best practices:
1. Conduct Regular Compliance Audits
Regularly review job applications, interview procedures, and hiring practices to ensure ongoing compliance. As laws evolve, compliance requirements change, necessitating periodic reassessment.
2. 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.
3. Document, Document, Document
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, and the reasoning behind the final determination.
This documentation provides crucial protection in case of agency investigations or litigation.
4. Develop Clear Matrices for Common Situations
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.
5. Implement Regular Training Programs
Conduct regular training for all personnel involved in hiring, including initial comprehensive training on Fair Chance requirements, periodic refreshers as laws change, specialized training for those conducting individualized assessments, and scenario-based sessions addressing complex situations.
6. 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, candidate referrals, and ongoing support to both employers and employees.
7. 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, and prepare your organization for possible future legislation.
Conclusion: Fair Chance Compliance as a Business Strategy
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 to their communities.
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 us 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.
