Fair Chance Employers: A 2025 Guide to Compliant and Inclusive Hiring Practices

Fair chance hiring promotes compliance with evolving state and federal laws that support inclusive recruitment for applicants with records. Employers must assess convictions individually, follow proper procedures, and align background checks with job relevance and legal standards.

By Brad Nakase, Attorney

Email | Call (800) 484-4610

Have a quick question? We answered nearly 2000 FAQs.

Table of Contents

1. Introduction

2. Fair Chance Employers: Meaning

3. Fair Chance Employment Regulations

4. Eight Fair Chance Employment Procedures

5. FAQs

Introduction

The objective of fair chance employment is to provide job opportunities for those with criminal backgrounds.

At present, 150 counties and municipalities, along with 37 states, have passed ban-the-box or fair chance legislation, and more states are looking to join.

This article examines fair chance hiring, covering its definition, pertinent legal requirements, and ways for employers who use fair chance recruiting practices to stay in compliance with the law.

Let’s begin.

Fair Chance Employers: Meaning

Employers who practice fair chance make hiring decisions based on candidates’ qualifications instead of their criminal histories, and they:

Don’t ask on the applications about convictions or arrests.
Never ask regarding criminal convictions prior to making a conditional job offer.

Criminal convictions may still be taken into account, but you must first evaluate each conviction separately in light of how it directly pertains to the job. The amount of time that has elapsed after the conviction should also be taken into account.

If you still choose not to hire the candidate, you must follow these steps to go over the FCRA’s adverse action process before deciding not to hire:

Notify the applicant of the pre-adverse action and specify which conviction leads you to reject their application for a job. Give the candidate 5 days to contest the facts or provide mitigating evidence, and include a duplicate of the background screening report.
If you ultimately decide not to hire the candidate, send them another adverse action notification along with a copy of their rights under state and FCRA statutes.

Once you have additional information about a candidate’s qualifications, you may make an unbiased determination regarding whether or not their convictions affect workplace safety or their capacity to carry out job duties.

Fair Chance Employment Regulations

Fair Chance Hiring Legislation at the State and Local Levels

It would be impossible to cover them all in this piece because ban-the-box & fair chance employment legislation have been implemented in numerous states & municipalities.

A few important statutes are covered here, though.

1. The Fair Chance Act of California

Employers that have employed five or more workers are prohibited by the California Fair Chance Law from questioning past convictions prior to making a conditional offer of employment. The law went into execution on 1^st January 2018.

To reduce the rates of recidivism and remove obstacles to employment for those with criminal records, the Fair Chance Act was made a law by modifying the FEHA (Fair Employment and Housing Act).

2. The Fair Hiring Law of Illinois

In Mar 2021, Governor Pritzker (Illinois) approved the Senate Bill 1480 into legislation. By including Section 2-103.1, which prevents businesses from treating candidates differently on the basis of their criminal past, this law also expanded the scope of the Human Rights Act.

This legislation bans companies from making an adverse employment choice unless they evaluate the applicant’s record and come to a conclusion that it significantly relates to the job tasks or that hiring them would be endangering public safety.

Before coming to a final decision, fair chance employers must also finish an adverse action procedure that follows the guidelines given by the FCRA (Fair Credit Reporting Act).

3. HB 707 in Louisiana

Jon Bel Edwards (Louisiana Governor) passed HB 707 into legislation on 16^th June 2021, and it went into effect on 1^st August 2021.

This law is applied to private and public enterprises. It mandates that before rejecting a candidate, fair chance employers should determine whether the applicant’s criminal history has a clear and negative relationship to the work requirements.

4. New Mexico SB 2

During a separate session in 2021, New Mexico approved and implemented SB 2. Public employers & occupational licensing organizations are not allowed to take into account pardoned, expunged, sealed, sealed, juvenile, or dismissed adjudications under this statute.

Additionally, criminal offenses that are neither relevant to the employment nor sufficiently recent to be a reasonable predictor of an applicant’s performance on the job are prohibited from being taken into account by public employers.

Federal Laws

1. 2019’s FCA (Fair Chance to Compete for Jobs Act)

The FCA became law in December 2020 after Congress passed it. The National Defense Authorization Act for 2020 mentions it as a component.

This statute forbids federal agencies from issuing government agreements to federal contractors who ask for criminal background checks without making conditional employment offers. This has been in execution since 20^th Jan 2021.

Individuals with convictions are granted equal job prospects under a number of federal statutes, and members belonging to protected groups are also granted equal opportunity by fair chance employers.

2. The Civil Rights Act, Title VII

This act prevents discrimination in any area of employment that is predicated on a candidate’s or employee’s protected characteristics.

The following are a few examples of protected characteristics:

Sex
Race
Disability
Age (Forty and over)
Sexual orientation
Pregnancy
Gender identity
Color
Genetic information
Religion
National origin

Equal opportunities for employment for individuals with specific protected characteristics is the goal of Title VII along with other national anti-discrimination legislation and amendments.

Discrimination is prohibited during the recruiting and hiring procedure.

Before rejecting an application, fair chance employers must consider each criminal conviction separately in relation to the responsibilities of the post for which the candidate has applied.

Eight Fair Chance Employment Procedures

Use the following advice for implementing fair chance recruiting in your organization.

1. Avoid bringing up criminal histories on your application for a job.

If your state permits you to ask about criminal histories on your forms, you might want to take those kinds of questions off. Ask candidates about their skills first instead.

2. Only take into account convictions that are directly related to your job positions.

Disregard an applicant’s convictions if they have nothing to do with the job’s responsibilities or workplace safety. Only take into account convictions that are relevant to the role.

3. Take Convictions’ Recent History into Account.

A candidate’s conviction history should also be taken into account. Don’t give a conviction as much significance if it occurred years ago and there haven’t been any convictions subsequently.

Consider setting a threshold for evaluating criminal histories that don’t include violent or major felony convictions.

4. Examine Rehabilitation Evidence.

It’s fair and important to let a previous offender demonstrate that they have changed before you make a decision on their hiring. If individuals with criminal histories can prove that they have improved, they shouldn’t be refused work.

5. Confirm the Complete Training of Your Human Resources Employees.

HR employees should be properly trained and should also be knowledgeable about all applicable local, state, and federal legislation.

Additionally, they should have the skill to evaluate a conviction to see if it is significant.

6. Don’t inquire about anything other than pertinent convictions.

Only request information regarding convictions that are pertinent to your open positions from the background check service you have selected.

7. Pick a Reputable Company for Employment Background Checks.

For any criminal record and other job background checks, make sure you engage with a trustworthy supplier to guarantee that the data you obtain is correct, current, and compatible with the law.

8. Put in place a procedure for handling applicants who have criminal histories.

Recruiting managers must know how to deal with candidates who may have committed crimes in the past.

FAQs

1. How can I use a fair chance recruiting system to perform background checks?

If your organization uses a fair chance recruiting procedure, you won’t ask for a background investigation until after you’ve interviewed a candidate and assessed their qualifications.

According to the legislation of several states, you must wait until you have made a conditional employment offer or established that the applicant is otherwise eligible for the role.

2. Second Chance Hiring: What is it?

Giving individuals with criminal histories a fair opportunity at employment by assessing their talents before collecting criminal history data is known as “second chance hiring,” which is another name for “fair chance hiring.”

3. Can I take criminal convictions into account?

Criminal convictions may still be taken into account when implementing a fair chance employment policy. But be careful not to inquire about criminal past until much later in the recruitment procedure, and then evaluate each applicant’s record in light of the position.

Have a quick question? We answered nearly 2000 FAQs.

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Fair Chance Employers: A 2025 Guide to Compliant and Inclusive Hiring Practices

Introduction

Fair Chance Employers: Meaning

Fair Chance Employment Regulations

Eight Fair Chance Employment Procedures

FAQs

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