What is Fair Chance Hiring?

Simply having a criminal record should not be enough to keep someone from being hired. Fair chance hiring refers to policies that help those with a criminal record find jobs they are qualified for. This can include removing the question about criminal convictions from job applications (also called “Ban the Box”), moving questions about criminal record to later in the hiring process and only asking about criminal record when it is relevant to the job.

Here at Pacific Reentry Career we are committed to educating employers on the benefits of hiring the reentry population. With that in mind, we have addressed some of the most common questions we have heard about fair chance hiring, and we have included links to useful fair chance hiring resources throughout this article.

How does fair chance hiring benefit employers?
One in three Americans has a criminal record. If employers automatically reject these job seekers, they are missing out on a large number of qualified applicants. Many people with criminal records are qualified and ready to work.

How does fair chance hiring benefit formerly incarcerated job seekers?
Getting a good job with a steady income is a huge step in rebuilding a life following incarceration. It can help reduce recidivism, secure housing and help to reunite families. Often checking yes to the job application question about criminal record can automatically land someone in the reject pile. By moving the question about criminal background to later in the process (or not asking it at all if it is not relevant to the job), formerly incarcerated job seekers can be evaluated based on work history, education and other job qualifications, which gives them a fair shot at landing a good job. Their criminal record no longer becomes an automatic rejection.

Does fair chance hiring mean I should never ask about criminal background?
You can still ask about criminal background if you practice fair chance hiring, but you should evaluate when in the process you look at criminal background. The simplest thing is to remove the question about criminal background from your job application and to ask about it once a conditional offer has been made if it is relevant to the job. This gives job seekers a chance to be evaluated on qualifications without having a criminal record unfairly bias a hiring manager against them. For some jobs, you may want to do away with the question all together.

What is the EEOC guidance on the use of criminal background checks in hiring?
In 2012, the EEOC issued guidance on the use of criminal background checks in hiring. The EEOC’s guidance comes from the fact that certain racial and ethnic groups experience higher rates of incarceration and may therefore face barriers to employment. This may lead to discriminatory hiring practices. The EEOC’s guidance encourages employers to only look into an applicant’s criminal background if it is relevant to the job. This is not law, but it is a good place for employers to start when figuring out how to change their hiring process so it does not create unfair biases against people with records. Click on the link at the beginning of this answer or visit the EEOC’s information page for more information on the guidance.

What if I want to use a background company to review criminal records of potential hires?
There are federal and state laws that govern the use of background check companies. Root & Rebound’s “California Employers’ Fair Chance Hiring Toolkit” offers detailed information on the requirements for California employers. If you are thinking about employing a background check company, it is best to consult with an employment attorney to make sure your process fits within the legal requirements.

Are there ways I can protect my business if I do end up making a bad hire?
Many people with criminal records go on to live productive lives following release from jail or prison. The U.S. Department of Labor established the Federal Bonding program in 1966 to provide fidelity bonds to cover at-risk, hard-to-place job seekers. This includes formerly incarcerated individuals. This program is free for employers and employees and covers the first six months of employment. For more information, visitthe Federal Bonding Program website or contact your local EDD office in California. Keep in mind that only about 1% of these bonds are ever claimed, so those covered by bonds have had a high success rate with employers.

Are there any tax benefits for hiring formerly incarcerated people?
The Work Opportunity Tax Credit (WOTC) is a federal program that provides a tax incentive to employers who hire people from difficult-to-employ groups, which includes the formerly incarcerated. You can learn more about WOTC on the Department of Labor’s website. California offers additional incentives to employers in designated geographical areas. For more information on the California incentive, visit the Franchise Tax Board’s site.

What can I do to show that my business supports fair chance hiring?
Visit the Dave's Killer Bread website to take the Second Chance Pledge to show that you are committed to removing barriers to employment for the formerly incarcerated. Train hiring managers to make fair decisions regarding candidates with criminal records, support community programs that help the formerly incarcerated find employment and spread the word about the benefits of hiring the reentry population.

This article is provided for informational purposes only and should not be construed as legal advice. It is always a good idea to check with an employment attorney before making changes to your hiring process and to ensure that your hiring practices are legal and fit within the requirements of the law for your location.