Fair Chance Policy and Your Organization

Mercer PeoplePro Blog Fair Chance

Fair Chance Policy Known as “Ban the Box”

In April, S. 842 – known as the Fair Chance Art – that would “prohibit Federal agencies and Federal contractors from requesting that an applicant for employment disclose criminal history record information before the applicant has received a conditional offer, and for other purposes” was referred to the Senate Homeland Security and Governmental Affairs Committee to consider whether or not to send it to the House or Senate for a vote.

Although federal legislation is pending, 25 states, the District of Columbia and 29 cities and counties have ‘banned the box’ – removing the conviction history check-box on employment applications, delaying criminal background checks until later in the recruiting process, and ensuring that information resulting from those checks is used fairly for public employment applications.

In addition, 15 of those localities have extended their fair-chance laws to private employers in the area. [Refer to the National Employment Law Project’s (NELP’s) Ban the Box Fair Chance Hiring State and Local Guide for a full listing of jurisdictions that have adopted fair-chance policy.]

Fair-chance policy’s aim is to provide fair access to employment (and other) opportunities. Although born of grassroots efforts in the early 2000s, and the work of All of Us or None – an organization that advocates for the rights of currently and formerly incarcerated individuals – ban the box gained national momentum in October 2015 when President Obama directed the Office of Personnel Management (OPM) to remove the criminal check-box from Federal agency job applications.

The OPM policy, finalized last year, bans the box except when there are “legitimate, specific, job-related reasons” for disqualifying those with criminal histories at the time of application. Research shows that those employed, formerly incarcerated individuals have a greater chance of staying out of prison[i], and fair chance policy requires that these candidates be considered on their individual merits as applicants, not their past mistakes. Many major national employers – like Home Depot and Walmart – have embraced fair-chance policy.

What Does Fair Chance Policy Mean for Your Organization?

Implications of ban the box legislation extend beyond simply removing the check-box from your organization’s employment application to comply with the law. It provides a timely opportunity for all employers with U.S. operations to review and update their hiring practices to ensure they’re not only compliant, but fair and accessible to a diverse workforce.

To ensure that all candidates have an opportunity to compete fairly for jobs within your organization, you might ask:

  • Is our hiring process applied consistently within the organization, and are hiring policies documented?
  • Does our hiring process rely on ‘blanket’ exclusions, or do we assess candidates individually?
  • Does our hiring process consider the time that’s passed since a conviction, as well as the relevance of the conviction to the job duties?
  • Is information from background checks being used fairly and consistently?
  • Do we allow candidates an opportunity to review background checks for errors and respond to the information contained within them?
  • Are there other barriers to employment with our organization? How can we overcome those barriers?

HR Expertise On Demand

From hiring advice, to benchmarking or providing a comprehensive review of your hiring policies and procedures, Mercer PeoplePro is here to help make sure you’re compliant, as well as recruiting and retaining the best candidates. When it comes to HR we’ve got you covered. We’ll even give you a two-hour consultation FREE. To set up your free consultation, visit PeoplePro — help is only a click away.

Written by Mercer PeoplePro Engagement & Communications Specialist, Lisa Jarmoszka


[i] According to a study in Illinois that followed 1,600 individuals released from state prison, only eight percent of those who were employed for a year committed another crime, compared to the state’s 54 percent average recidivism rate. See Lurigio, Art, “Presentation of Safer Foundation Recidivism Study at the 135th Congress of Correction.” American Correctional Assoc. Aug. 8, 2005.





Leave a Comment