Understanding the Fair Chance Act for Ban The Box Criminal Screening Requirements

Understanding the Fair Chance Act

With the ever changing landscape of “ban-the-box” laws and Fair Chance Act initiatives, it is time to put all of these convoluted and contradicted laws into perspective. It is not much of a surprise for a movement as important as “ban-the-box” laws to be a bit confusing for employers, cities, counties, and contractors to comprehend.

The reason that these initiatives exist is to remove barriers to employment for certain classes of people who have experienced disparate impact simply by having a criminal background. The Fair Chance Act mandates for employers completely remove the question on the employment application inquiring about past criminal history and waiting until further along in the hiring process to inquire about this information. While this may seems pretty straightforward, this is not the case as there currently is not a federal “ban-the-box” law.

There are instead states with a specific policy that may contradict a county with its own specific policy. From there, a city in that county might even have a different interpretation of the same law. This is why an infographic is needed to explain each state, county, and city’s requirements in order to be in compliance with “ban-the-box.”

For employers that operate in multiple states or have multiple sites throughout a state, it would be in their best interested to understand if they are mandated by any type of “ban-the-box” law based on their location. The majority of jurisdictions require that employers extend a conditional offer of employment before inquiring or conducting an employment background check. Others may ask during the first interview or when the applicant has been deemed “otherwise qualified” for the position they are applying for.

Another vital factor in these “ban-the-box” laws is conducting an EEOC Individualized Assessment. All this means is that organizations must comply with the Equal Employment Opportunity Commission (EEOC) guidance on using criminal records in making an employment decision. In a nutshell, the EEOC wants employers to sit down with the job applicant and discuss the adverse or potential adverse information reported on the background screening report.

Items that the employer must factor when ultimately making their final decision would be based on “Green Factors” such as:

The nature and gravity of the offense or conduct
The time that has passed since the offense or conduct and/or completion of the sentence
The nature of the job held or sought

In some jurisdictions, applicants have the right to appeal adverse action through evidence contradicting the accuracy of the background screening report. Traditionally, the pre-adverse and adverse action process cited in the Fair Credit Reporting Act (FCRA) allows the consumer to identify any inaccuracies in the report and dispute the information with the background screening company that provided the report. With the new requirements associated with the Fair Chance Act, employers are required to review any and all documentation provided by the applicant either disputing or mitigating the adverse action being reported.

What This Infographic Will Explain

The infographic has been organized by states to include any state laws pertaining to private/state employment, as well as counties within the state that may be subject to private/county employment, and cities within the counties that may be subjected to private/city employment. Each law’s requirements are defined for its respective jurisdiction, whether it is only eliminating the question on the application, requiring a conditional job offer, following the EEOC individual assessment, giving the applicant an opportunity to appeal a denial of employment, or providing a copy of the background screening report regardless of their hiring status.

If employers fail to comply with these laws, fines and penalties may be in the millions since there currently is not a capped amount associated with violations of the FCRA. Professional applicants may also maliciously set up employers who are not in compliance with “ban-the-box” laws for the applicant’s own personal gain, even if no actual harm was done.

What Employers Can Do to Stay Compliant

Either way, all employers, regardless of their size, location, or industry would be best served to eliminate any question on their job application inquiring about previous criminal history first and foremost. Employers should also ensure that their third-party background screening vendor is aware of these laws correlated to the Fair Chance Act, how to stay ahead of the curve, and ways to keep their clients in compliance.

Here are a few items to look for when selecting a third-party vendor:

Compliant with federal and state laws
Compliant disclosure forms, releases, and notices
Secure software for ordering, retrieving, and storing reports
Legally compliant results
Affiliated with respected screening trade organizations
Provides disclaimers on database searches
Member of any industry trade associations (NAPBS)
Have U.S. based representatives
Not outsourcing information (outside of the U.S.)

Background screening is a dynamic and fluid industry that requires constant monitoring on both the state level and federal level to make sure that employers are not in violation of any consumer rights or failing to provide applicants with all necessary release forms and disclosures.

It is highly encouraged for employers to revisit their organization’s background screening policy to include language pertaining to the Fair Chance Act and how the employer complies with said laws based on their physical location and where applicants may reside. Review any and all disclosures and notices being provided to applicants for compliance with state laws.

How we keep our clients informed of changing laws on both the federal and state level: