An estimated 70 million people in the United States have some form of criminal history, whether a formal arrest or a conviction.

To regulate how “justice-involved” people are treated during hiring, various fair chance hiring laws require employers to treat them fairly. These so-called ‘ban the box’ laws seek to give formerly incarcerated people a fair chance at applying for (and being hired for) jobs. 

When writing job descriptions, it’s important to know about your legal duties and risks. These laws vary depending on the state where your company operates (or is based). And increasingly, more states or city governments are adopting fair hiring laws. 

 

What is fair chance hiring?

Fair chance hiring (also called second chance hiring) relates to how employers recruit new staff, and their attitudes and actions related to applicants’ past history with the courts. 

To comply with fair chance hiring practices, you should avoid any questions about someone’s arrests or convictions in job ads and job descriptions. And generally, you can only ask questions about an applicant’s convictions once you’ve extended an offer of employment.

This helps to eliminate bias and helps you choose applicants based on how well they do in interviews, their experience and skills, and whether they will be an asset to the hiring team.

 

How the laws affect writing jobs descriptions

As fair chance hiring laws become more common, you’ll need to keep track to ensure compliance. And you may need to adjust current screening policies or job description writing to avoid hefty penalties related to breaches. 

Here are 4 state and municipal fair chance hiring laws, with examples of conditions and requirements that are binding on employers. Many of these laws make it illegal to ask any questions, even if implied, about people’s “criminal histories” – when advertising job ads and during the hiring process. 

And, many of these laws explicitly state that having a “criminal history” should not exclude anyone from being selected for a job.

 

4 Fair Chance Hiring Laws (across the U.S.)

Below we take a closer look at 4 different fair chance hiring laws. They include:

  • the City of Austin’s Fair Chance Hiring Ordinance
  • the District of Columbia’s Fair Criminal Record Screening Amendment Act
  • New York City’s Fair Chance Act (FCA)
  • the San Francisco Fair Chance Ordinance (FCO)

1. The City of Austin’s Fair Chance Hiring Ordinance

  • Passed Date: March 24, 2016
  • Effective Date: April 4, 2016

The City of Austin’s Fair Chance Hiring Ordinance (Ordinance No. 20160324-019) has various provisions that relate to what employers are legally entitled to do (or prohibited from doing) concerning hiring practices related to “justice-involved” people. 

There may be civil penalties imposed for violations of this Ordinance. 

IMPACT ON JOB DESCRIPTIONS

When it comes to drafting job descriptions, employers may not:

  • Publish a job description that states – or even implies – that people with a criminal history will be disqualified from applying or from being considered for the position. 
  • Solicit details about, or ask about, someone’s criminal history in a job application.
  • Refuse to consider employing someone because they didn’t provide information about their criminal history before they received a conditional job offer.

 

2. The District of Columbia’s Fair Criminal Record Screening Amendment Act

  • Passed Date: August 21, 2014
  • Effective Date: December 17, 2014

The District of Columbia’s Fair Criminal Record Screening Amendment Act of 2014 (Act Number A20-0422) aims to stop the unlawful screening of any job applicant based on former convictions. It also imposes penalties for violations that occur after the effective date, up to $5000 for employers with 100 or more employees.

This law applies to employers with more than 11 employees for any job in the District of Columbia, including nonprofits, government agencies and departments, and companies. There are a few exceptions, including the federal government.

The Act also does not apply if a federal or D.C. law requires that a job applicant’s criminal history should be considered. And it doesn’t extend to where the job in question would provide programs or services to minors or vulnerable adults.

IMPACT ON JOB DESCRIPTIONS

When it comes to drafting job descriptions, employers may not:

  • Ask applicants in a job description or interview process (before a conditional job offer) about their criminal history, like their arrests, convictions, or criminal accusations made against them.

 

3. New York City’s Fair Chance Act (FCA)

  • Passed Date: October 2, 2015
  • Effective Date: October 27, 2015

The New York City Fair Chance Act makes it illegal for prospective employers to ask about an applicant’s criminal history until a conditional offer of employment has been made. It also stipulates the processes to follow if an employer withdraws a conditional job offer after enquiring about an applicant’s criminal history. 

Recent amendments to the FCA through the Fair Chance Act Amendments 2021 (Bill No. 1314-A) became effective as of July 29, 2021.

IMPACT ON JOB DESCRIPTIONS

When it comes to drafting job descriptions, employers may not:

  • Request or review any information related to an applicant’s criminal history until they have screened applicants for other background information (e.g., reference checks) and only once a conditional employment offer has been made.

 

4. The San Francisco Fair Chance Ordinance (FCO) 

  • Passed Date: February 2014
  • Effective Date: October 1, 2018

Any type of organization that is either located in, or does business in the city of San Francisco and employs 5 or more people (regardless of where they are located) is subject to the San Francisco Fair Chance Ordinance (FCO).

Along with the conditions mentioned below that are required when posting job descriptions, employers (as defined in the FCO) must also visibly post the Official FCO Notice poster in every job site of the employer. And employers need to provide annual compliance reports concerning the FCO to the Office of Labor Standards (OLSE).

IMPACT ON JOB DESCRIPTIONS

When it comes to drafting job descriptions, employers must:

  • Expressly state in all job descriptions that any applicant with a criminal history will be considered for the job position under the Ordinance. 

When it comes to drafting job descriptions, employers must not:

  • Ask applicants about their arrests or convictions.
  • Conduct a background check or ask about criminal records until AFTER making a conditional offer of employment.

There are also various questions that employers can never ask, even once a conditional employment offer has been made. That includes, for example, questions about any conviction in the juvenile justice system or a conviction for decriminalized conduct (such as the cultivation of cannabis).

 

Other Fair Chance Hiring Laws

In addition to the states and cities above, there are various states and cities that apply ban-the-box laws and require that no “criminal checks” be conducted before a job offer.

They include:

  • Compton
  • Los Angeles
  • Hartford
  • New Haven
  • Georgia
  • Hawaii
  • Illinois
  • Chicago
  • Cook County
  • Waterloo
  • Baltimore
  • Montgomery County
  • Prince George’s County
  • Detroit
  • Columbia
  • Kansas City
  • Rochester
  • Syracuse
  • Portland
  • Philadelphia
  • Madison
  • Nevada

Certain cities and states (along with the ones above) also require that no criminal history questions be asked on the job application, or that job applications do not specifically exclude people based on their criminal histories.

They include:

  • New Orleans (applies to contractors doing business with New Orleans)
  • Maine
  • St. Louis
  • Buffalo
  • Colorado
  • Maryland
  • Virginia
  • Vermont
  • Rhode Island
  • Oregon
  • Massachusetts
  • Minnesota

 

Why I Wrote This:

Ongig’s job description software can screen and analyze job postings for exclusionary language that may breach fair chance hiring laws. That includes flagging exclusionary terms like “ex-con,” “felon,” “ex-offender,” etc. This helps you avoid bias and write more inclusive job descriptions, which may ultimately help you attract a larger and more diverse talent pool.

by in Diversity and Inclusion

Leave a Reply

  • (will not be published)