Fair Chance: Background Checks After the Job Offer

SHRM reports that more people want to give a fair chance to those with criminal records and would be proud to work for an employer who did. As employees voluntarily resign from their jobs and the labor market tightens, employers who aren't hiring the formerly incarcerated are missing out on valuable, more diverse candidates. HR managers, take note of these big changes and how to feel comfortable hiring those with criminal records.

Postponing criminal background checks until after the job offer helps eliminate bias for fair chance hiring.

Fair Chance Hiring Laws in 2021

Cities and states are pushing beyond "ban the box" laws and amending employment labor laws to create a more inclusive workforce. Among new Fair Chance Hiring laws so far this year are: 

Maine:  Signed in July, the new law not only bans the criminal question on an application but also prohibits employers from inquiring about criminal history until after the conditional job offer. It will go into effect on October 18, 2021

New York City: New York's Fair Chance Act was recently amended to limit job description language that would discourage those with criminal records from applying and added steps to the adverse action process to assess the job-relatability of the criminal offense. Reviewing criminal history must also be delayed until after the job offer. 

Louisiana: Louisiana's new labor law went into effect at the beginning of August. It specifies that employers (with 20 or more employees) must conduct an assessment of criminal records to determine if the records have "a direct and adverse relationship" to the job responsibilities. Otherwise, if there was no conviction or the criminal record doesn't affect the job duties, it cannot be used against the candidate.

Kentucky: While Kentucky as a whole hasn't passed any new fair chance hiring laws, they did pass ban the box legislation in 2017 and have implemented a workforce center for fair chance employers to list themselves as hiring. The Kentucky Chamber does seem to be considering more legislation via efforts from the Kentucky Comeback program. 

See also: Assessing Criminal Records in Hiring Decisions

Individual Assessments & Conditional Job Offers

The ongoing trend among these new laws seems to be the adoption of the EEOC guidance of individual assessment of criminal records. The guidance suggests that employers not use arrest records (that didn't lead to conviction) and evaluate three factors of an applicant's criminal record:

• Nature and gravity of the crime
• Time elapsed since the conviction of the crime or completion of the sentence
• Whether the crime affects the nature of the job for which the applicant is being considered

Conditional job offers are extended after the candidate has been thoroughly vetted for the necessary skills and requirements of the job but before a criminal background check. Once the job has been offered, the criminal background check is conducted and the results measured against the factors mentioned in the EEOC guidance. 

VeriFirst Background Screening not only suggests this as a best practice for fair chance hiring but also to save time and money on background checks. A two-tiered approach to screening will reduce the possibility of hiring bias and help meet new law requirements. Contact us to learn more.