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Dilemma of the Month: Does the Fair Chance Act Mean I Have to Hire Criminals?

Back Article Dec 6, 2023 By Suzanne Lucas

This story is part of our December 2023 Innovation issue. To subscribe, click here.

I’m concerned with California’s new Fair Chance Act regarding how we evaluate people with criminal histories. I have a lot of vulnerable employees, and the last thing I want is to bring a violent criminal into work! How can I protect my employees and follow the law?

The Fair Chance Act was enacted on October 1, 2023, so it’s new to everyone. And fortunately, it doesn’t require you to hire violent criminals. So take a deep breath, and let’s walk through what this law does and does not do. 

First, it’s basically a “ban-the-box” law that is popular in several states, so you can look at how others have handled this. What a ban-the-box law does is prevent you from asking a candidate about their convictions until you have given them a contingent offer. A contingent offer is when you say, “We’d like to offer you this job if you pass the background check.” If the background check does reveal that the applicant has a violent record, you’re not required to hire them. 

So this act doesn’t require you to hire anyone. But it does make it easier for people with criminal histories to get jobs, and it does place some extra obligations on companies. 

There are three main things to consider when a candidate has a conviction: the nature and gravity of the offense; the time that has passed since the offense; and the nature of the job held or sought. Let’s break that down.

The nature and gravity of the offense. It’s not just that someone was convicted of theft, but you have to consider what they did and how they did it. There’s a difference between someone who stole diapers and formula to care for a baby and someone who stole a watch from a jewelry store. There’s an even more significant difference between someone who shoplifted and someone who used a gun to steal. You’re allowed to talk to the candidate about their conviction to help you make your decision. 

The time that has passed since the offense. People change. Someone who committed a crime 10 years ago may have grown a lot since that event. Additionally, the candidate should have the chance to demonstrate that they have changed. What rehabilitation programs have they completed, and what other jobs have they held?

The nature of the job held or sought. Not all jobs are equal. Someone with drug convictions should not work behind the counter at a pharmacy but would likely be fine in a garden center. 

You said you had vulnerable employees, and you were concerned about them. That will play a role in how you consider candidates with convictions. You’ll want to loop your employment lawyer into the conversation if you want to reject a candidate.

How this law applies to recruiting

The most significant difference is that unless you’re required to by law (such as a job requiring a federal security clearance), you can’t ask about convictions or state in your job posting that you will not consider people with convictions. And, if you use an agency or staffing company to hire, it has to follow the law, too. 

If a candidate has a conviction, you must consider the situation and the rehabilitation the candidate has undergone. If you decide to revoke the offer based on the conviction, you must provide the reasoning to the candidate and a copy of the background check information. The candidate then has five days to respond and produce new information. You then need to review that. If you ultimately decide not to hire the person, you’ll have to, again, explain why. For instance, you can probably safely refuse to hire a former bank robber to work in your armored car business. They can, of course, file a complaint with the Civil Rights Department, who will evaluate the decision.

The benefits of the law

The point is to get everyone working. This is better for society and the job candidate. If you’re at work all day, you’re probably less likely to commit crimes. Additionally, the law allows for redemption: Just because you did something illegal once doesn’t mean you can never be a responsible adult.

Make sure your application and hiring process follow the new state law, and remember to loop in your employment attorney if you decide to revoke a job offer due to a conviction. Overall, I doubt it will make a big difference in the quality of people you hire, but you may give second chances to people who deserve it. 

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