For many years, organizations and lawmakers across the country have dedicated their efforts to leveling the playing field and increasing access to job opportunities for individuals with criminal records. Like other initiatives gaining traction across the country, these efforts have focused primarily on preventing disparate impact, ending discriminatory hiring practices and combating workplace discrimination. Of these initiatives, Fair Chance and Ban the Box laws have been the most popular with more than 15 jurisdictions having enacted laws in the last few years.
In fact, the vast majority of major metropolitan areas in the United States have recently enacted some type of Fair Chance Act or Ban the Box initiative – causing the movement to pick up steam. Some of these states/jurisdictions include the following:
- Los Angeles
- New Jersey
- New York City
- San Francisco
- Washington D.C.
With many of the country’s most populous areas appearing on the list above, employers can safely assume that the number of Fair Chance laws throughout the country will grow significantly over the next few years. This growth may pose additional challenges for employers in the future – especially those operating in multiple states and jurisdictions.
Laws vary from state to state, but taking the time to assess current policies, and implement a few industry best practices based on trends, can significantly minimize risks for employers in the long-run. All employers should seek legal counsel if they believe new and pending legislation may impact future hiring processes, but taking the following suggestions into consideration will go a long way in the interim.
- When interviewing or screening a candidate, do not ask them about criminal history – this applies to interviews and applications.
- Avoid conducting a background screen until after a conditional offer has been extended.
- In the event that a candidate does have a criminal record, take the following into consideration before making a final decision or immediately disqualifying them:
- Specific duties of the position and the bearing, if any, of the criminal offense on those job duties
- Time elapsed since the criminal offense and age of the offender at the time of the offense
- Any rehabilitation efforts/good conduct
- Protection, safety and welfare of individuals within your workplace and/or general public
- Should your organization decide the candidate is not a good fit after locating a criminal record, provide the applicant with proper adverse action notices, and an opportunity to provide additional information.
- In the event the candidate provides additional information, reassess and provide appropriate documentation in accordance with each city/state requirement.