Increasingly, countries and states are making fair-chance hiring practices a law rather than a recommendation.
So what are they?
Fair-chance hiring is the practice of hiring an individual regardless of their criminal record, which gives people with convictions more opportunities in the job market.
Between 70 million and 100 million Americans have a criminal record, and this includes minor offenses, such as misdemeanors or arrest without conviction.
Excluding these individuals based solely on a criminal record not only denies them an opportunity to re-enter the workforce and society but also affects your business’s potential talent pool, and has implications for diversity, equity, and inclusion.
This article offers you a complete guide to fair-chance hiring practices, including legal requirements, benefits, and how you can start implementing them into your hiring process.
Table of contents
- What are fair-chance hiring practices?
- What are the legal requirements surrounding fair-chance hiring practices when performing background checks?
- What are the benefits of fair-chance hiring practices?
- How to implement fair-chance hiring practices
- ✅ Conduct bias-free hiring tests today
What are fair-chance hiring practices?
Fair-chance hiring builds on the idea that everyone, regardless of their background, has the right to a recruitment process free from bias and based on knowledge and skill.
Other names for fair-chance hiring include fair chance act, ban the box laws, and fair-hiring policies.
Fair-chance hiring practices typically involve removing sweeping exclusions of people with any type of criminal record, or delaying questions about criminal history until later in the process so individuals have a chance to display their qualifications and skill.
Here are a few examples of fair-chance hiring practices:
- Delaying questions about criminal history until a conditional offer has been made
- Removing questions or checkboxes about criminal history (hence, “ban the box”)
- Considering all information related to arrests without conviction
- Performing individualized assessments for applicants with a criminal history
Although fair-chance hiring has been around for over a decade now, it’s gained serious momentum in the past few years. The reasons for this include:
- Employers wanting to give people a fair chance at re-entering society
- The improvement of equality and diversity initiatives
- The Great Resignation, thanks to the pandemic
- The enormous incarceration rate, many of them unjust and unfair (see the below stats)
Here’s a handful of interesting ban the box statistics and facts:
- Since 2009, 37 states and over 150 counties and cities have adopted some type of fair-chance hiring policy
- By prohibiting conviction history inquiries on job applications, 700,000 more people will have a fair chance of seeking employment
- 50% – 80% of criminal records have inaccuracies
- 600,000 individuals re-enter society from prison each year
Fair-chance hiring aims to help job seekers and employees find fulfilling occupations by eliminating discrimination from recruitment and ensuring that aptitude and skill are the sole basis for hiring. Previous incarceration is one of the many ways that unconscious bias can creep into hiring decisions.
But the advantages of initiatives that integrate people with a criminal record into your workforce aren’t limited to giving these individuals a chance to re-enter society and support their families: It also makes recruitment easier, improves business performance, and contributes to safer, happier communities.
And we think it’s the right thing to do.
What are the legal requirements surrounding fair-chance hiring practices when performing background checks?
Yes, in many places, fair-chance hiring is now being enforced legally. But there’s no need for concern – you’ve got this.
The legal requirements of fair-chance hiring are different depending on the country, state, county, or municipality.
Both San Francisco’s 2014 fair-chance hiring law and Los Angeles’ 2017 law were merged into a state-wide law in California in 2018.
However, other US states have different laws. In 2019, legislatures adopted “fair-chance licensing” reforms in nine US states: Arkansas, Iowa, Maryland, Mississippi, Oklahoma, Nevada, North Carolina, Texas, and Utah.
To varying degrees, the laws include:
- The removal of blanket bans on people with criminal records/conviction records
- The adoption of unbiased evaluation criteria
- The expansion of transparency in hiring
- The removal of vague statutory language
If individual states and cities differ, you’ll probably find it unsurprising that laws vary from country to country.
The United Kingdom has its own fair-chance recruitment principles. They’re a set of guidelines, which means they aren’t strictly laws – although they do interact with existing laws, such as the General Data Protection Regulation (GDPR) and Data Protection Act 2018.
The result is that you need a lawful basis and condition for requesting a check on an applicant’s criminal history.
Europe also has its own laws and rules. For example, Belgium’s hiring practices only allow criminal background checks in certain sectors, such as security jobs, and only with the job applicant’s express permission.
Always research local laws and get legal advice before finalizing new business processes because it’s the hirer’s responsibility to know and adhere to the law.
Now, legally required or not, there are some substantial benefits for organizations adopting fair-chance hiring.
What are the benefits of fair-chance hiring practices?
Fair-chance hiring benefits employers and job seekers alike. It isn’t just the right thing to do; it has both short-term and long-term benefits for companies, such as increased productivity, reduced turnover, and increased diversity.
And diverse, inclusive workplaces are 35% more likely to outperform the competition.
1. Productivity and performance
One study found that 85% of HR executives and 81% of business leaders say that individuals with criminal records perform equally or better than employees without criminal records.
JBM Packaging, a manufacturing company based in Ohio, updated its recruiting strategy and hiring process to be more inclusive to people with criminal records and saw this happen first-hand.
They’re about four years into this project and 25% of JBM Packaging’s employees now have a criminal record, which has turned out to be a good thing.
The company’s top four highest performers have convictions, and every employee with a record is said to be safety-minded, hard-working, and an essential part of their business.
Ashley Caudill, the HR supervisor at JBM Packaging, had this to say: “[Second chance employment] was a win-win-win: to reduce recidivism, offer opportunities to those that need a second chance, and JBM gets a quality team member out of it.”
Fair-chance hiring might even inspire your other employees to be more productive.
According to the 2021 Employee Engagement & Retention Report, 49% of employees claimed they would be more engaged if their employer took a stand on racial and social injustice issues.
You can ensure hiring for performance, productivity, and skill by using unbiased tools like job simulations. These help you focus on how an applicant will accomplish daily tasks and objectives, not on their past.
So you can hire the person best suited to the job (and your team).
2. Better job retention
Increased job retention and reduced employee turnover are seen in businesses that implement fair-chance hiring practices.
Companies like the John Hopkins Health Systems and Hospital found that fair-chance employees had a 43% higher retention rate than those without a criminal record.
What’s more, 85% of executives at fair-chance hiring businesses say that people with a criminal history stay at their company as long, if not longer, than other workers.
And it doesn’t stop there.
The Millenia Companies, an affordable housing and property business, began fair-chance hiring practices after someone close to Frank T. Sinito, the company’s founder, was incarcerated.
He wanted to bring hope to those inside prison by giving a chance to those outside prison.
The initiative started with a partnership with True Freedom Prison Ministry, an association that collaborates with nonprofit and public groups to rehabilitate inmates and reintegrate ex-offenders into their communities.
The employees that The Millenia Companies hired through this partnership showed a retention rate of 60% versus the industry’s average 73% turnover rate.
Your average employees may be tempted to move on to other organizations when something else tickles their fancy. But when given the opportunity to work hard, support themselves and their loved ones, and re-enter society, people with criminal records don’t take it for granted.
3. Diversity and inclusion
Blanket policies that automatically disqualify criminal records can be a diversity and race equality issue. The overall population of people with records is disproportionately people of color.
- Black and indigenous people are arrested at twice the rate of white people
- Black men are arrested five times as often as white men
- Black and Hispanic people only make up about 31% of the population, and yet they account for over half of the imprisoned population
Diversity has been a major benefit to Dave’s Killer Bread since adopting fair-chance hiring.
The company began this practice because Dave Dahl, the founder, had spent 15 years in prison and strived to turn his life around and leave his past behind.
Their second chance hiring policy made their team more inclusive and diverse, with a much stronger family culture. It opened their doors to incredible talent, and not just the individuals with records.
Dave’s Killer Bread also attracted a diverse, talented range of people that never had a brush with the legal system due to the company’s inclusivity, stance, and values.
“[T]hey see that we’re a company that stands both by our values and our heart and soul and that they want to be a part of it,” says Genevieve Martin, executive director of Dave’s Killer Bread.
Rejecting individuals with a criminal history not only unfairly denies job opportunities for many more people of color when compared with white folks, it also denies your company beneficial opportunity.
A study carried out by BCG showed a direct correlation between diversity and overall innovation. Companies with above-average diversity on their management teams reported 19% higher revenue than those with below-average diversity.
Diversity is the future – and we’re here for it. For more on the topic, read our blog post on Diversity Recruiting: 10 Do’s and Don’ts.
4. Improving lives
There is another obvious point – but it’s undeniably the most important.
Fair-chance hiring reduces recidivism, or the chance that a person with a criminal history will re-offend. Each year, an average of 600,000 inmates are released, yet nearly 50% of them end up back in prison.
Why? With so many employers denying these people work outright, they lose hope. They give up.
If an ex-offender can’t re-enter society with a stable job, you might wonder what the point of rehabilitation through correctional facilities is.
Fair-chance hiring practices give hope, stability, and a new life to the formerly incarcerated. This can be seen with Slack’s Next Chapter project.
The Next Chapter project was launched in 2018 and designed to create technology employment opportunities for those with a criminal record. Each “apprentice” is provided support through education, community, and re-entry services.
The project has been overwhelmingly successful and is now partnered with 11 different companies, offering people with competitive salaries and marketable skills.
Kenyatta Leal, the director of re-entry at the Next Chapter Project, spent more than 20 years in the California prison system himself. Speaking about fair-chance hiring improving lives, Kenyatta says:
“We’ve come up with a thousand ways to make sure that [a] plastic bottle gets a new life, but far too few to make sure that somebody getting out of prison does.”
Better jobs lead to better chances for these people, allowing them to live to fulfill their potential and successfully re-enter society.
5. Larger talent pool
We want you to take a moment to think about something.
If 70 million Americans have a criminal record (about 1 in 3 people), how much talent do you think we’re missing out on by not hiring them?
That includes diverse thought processes, innovation, raw talent, and natural soft skills.
Many possibilities are taken off the table with across-the-board exclusions of previously incarcerated individuals. Your company could be missing out on qualified talent with a wide range of experiences and backgrounds.
According to a survey conducted by the Price Center, 82% of companies believe viable talent is overlooked due to criminal records, and 74% agreed that fair-chance policies increase the pool of qualified candidates.
If you ignore biases like criminal records and focus only on knowledge and skills, like any of the assessments in our test library, you’ll be choosing a candidate based solely on talent.
Maybe another candidate has a squeaky clean legal record and went to the same college as you – but it doesn’t mean that they’re more skilled.
How to implement fair-chance hiring practices
In a nutshell:
- Get executive-level buy-in
- Update your employee background check tool
- Stop relying on resumes alone
- Use structured interviews
- Use online, unbiased skills testing
- Implement individualized assessments
- Assess charges for relevancy
Those are the main strategies, so let’s dig a little further into each point.
1. Get executive-level buy-in
Your company’s executives and leaders are crucial to successfully implementing fair-chance hiring practices.
Convincing executives that these practices are beneficial and worth their time will not only allow you to implement them successfully, but will also lead to better overall results.
CleanTurn, a commercial cleaning company, suggests not only getting higher-ups involved but also educating and immersing them in non-profits and the culture surrounding the group in question: Visit a prison and meet the people.
“I do believe it starts with the leadership,” says John Rush, CleanTurn’s chief executive. “I mean, if the leadership is not on board, the CEO, the executive team, the HR director, if folks at the top are not on board, then it’s not going to work.”
John suggests that executives get involved, get educated, and get out there. They should get to know the people and visit neighborhoods they’ve never been to.
In fact, this is how Stewart Butterfield, Slack’s chief executive, started the Next Chapter project mentioned above. He went to San Quentin State Prison in California, where he realized the untapped potential of the inmates.
2. Update your employee background check tool
Fair-chance hiring practices when performing background checks will be easier, more successful, and more accurate with updated tools.
Ensuring you have a quality background check tool allows you to:
- Verify quality and performance
- Ensure a criminal record is accurate and without implications for the job on offer
- Verify the candidate’s identity
- Check work history
- Verify all required licenses, such as medical licenses and teaching credentials
Quality tools provide quality data, ensuring you have all the knowledge you need to make an educated decision.
Not only can inaccuracies lead to a bad hire and all the time and money that go into re-hiring, but they may also deny a worthy candidate a deserved job.
This is one of many recruitment tools we recommend.
3. Stop relying on resumes alone
Resumes can be unreliable and misleading. After all, they’re nothing more than a piece of paper on which applicants themselves write their achievements.
A few unreliable points on resumes:
- Lying on resumes is possible and common
- Resume-scanning software can be flawed and error-prone
- Resumes cannot accurately predict future performance
- Resumes lead to biased hiring, whether on school attended, race, or gender
Another sneaky way that bias jumps in with resumes is in terminology and chosen words.
- Action verbs increase the chance of an interview by 140%
- Industry buzzwords increase the chance by 29%
- Leadership-oriented words boost it by 51%
Imagine how many employees are hired because of an expertly written resume, when a more qualified, skilled candidate is available – but isn’t great at writing a catchy resume.
When you stop relying on resumes alone, you give everyone a fairer chance – including people with a criminal record.
Assessing pure talent will ignore an applicant’s legal past, job gap, and anything else that, if we’re being honest, shouldn’t be a part of the hiring process.
4. Use structured interviews
Sticking to a structured, pre-planned interview will help prevent interviewer bias.
One of the best ways to avoid bias is to stick to a standardized, structured interview when talking with job applicants.
This can be a simple linear construction or just a list of pre-approved questions. No deviating from the structure, no wandering off-script to talk about how you both grew up in Chicago – just follow the steps.
Answering pre-established questions and giving all candidates the same amount of time to answer each one will provide an impartial interview that enables hiring teams and managers to make a fairer decision.
If you’re unsure where to start, read our interview guide template to get the steps to create one, sample questions, and in-depth information on structured interviews.
5. Online, unbiased skills tests
One of the best, easiest ways to implement fair-chance hiring is with online skills assessments. These enable you to test your employees bias-free and choose a candidate solely based on talent rather than gut feelings or appearances.
Here at TestGorilla, we firmly believe in hiring for skill, qualifications, and talent. That is why we offer so many unbiased tests and assessments for job candidates.
A few test examples include:
| Skill | Tests |
| Hard skills | Typescript debugging test, Javascript entry-level algorithm test |
| Role-specific skills | Warehouse supervisor test, Account management test |
| Language proficiency | Norwegian, Spanish, Polish |
| Personality and culture | Motivation test, Culture add test |
Let’s use the last one, our culture add test, as an example.
This test assesses how closely a candidate’s values and behaviors align with your organization, and if they would be a contribution to your team and work culture.
And if you reject applicants with a criminal record, you could deny the perfect addition to your work culture solely because of their past.
Unbiased skill tests will ensure you’re measuring your candidates’ job skills, personality, and overall fitness for the role, not their history.
6. Implement individualized assessments
Let’s say that you’ve accepted an applicant, gone through the interview, and found the perfect hire – but you’ve now discovered a criminal history.
What’s next?
The best practice is to give individual assessments to each candidate: evaluate their charges and records for relevance.
This means you won’t withdraw the job offer without first considering the following.
| Point | Question |
| Gravity | What’s the nature of the offense and how significant is it? |
| Time | How long has it been since the conviction or charge? |
| Job relevance | How relevant is the charge to the job in question? |
For example, if someone has a history of violence towards children, this will disqualify them from a teaching job.
But if an individual has an assault charge against another adult, it’s been 15 years since the charge, and the job in question is an IT position, there shouldn’t be anything standing in the way of a new life.
Remember when we mentioned the Millenia Companies above? They implement this process during their hiring. If the criminal history of a job candidate is discovered, the Talent Acquisition Director calls them and talks through their history with them.
This ensures that the record doesn’t conflict with their regulations, and it also gives the individual the opportunity to fully disclose information and circumstances.
Work towards removing biases against people with criminal records
Fair-chance hiring practices are gaining traction, and it’s clear that they’re part of the future of hiring.
Whether they are legally required or not in your area, the benefits they bring can’t be ignored.
Fair-chance hiring builds a stronger, more diverse workforce, and helps individuals live better lives. It can also benefit a company with stronger retention rates, productivity, and innovation.
If you want to incorporate our bias-free screening tests into your fair-chance hiring processes, get in touch with TestGorilla for a free 30-minute demo.
To keep reading about fair hiring, untapped talent, and unbiased testing – and proudly call yourself a fair-chance employer – read our blogs on special accommodations skills tests and unfair hiring.
