What Fair Chance Hiring Means for Employers Now

Fair chance hiring refers to laws and practices meant to give candidates with criminal records a genuine opportunity to be considered based on their qualifications. For employers, it has become one of the fastest-moving areas of hiring compliance, with requirements that differ by state, county, and city. This post draws on a Know Your People podcast episode with Angela Preston, deputy general counsel and senior vice president at First Advantage, and Ryan Bradley, founder of Bradley Consulting Group, who advises employers on hiring and workforce policy. It summarizes the conversation for general information; it is not legal advice, and employers should consult their own counsel on the rules that apply to them.

What is fair chance hiring?

The movement began with Ban the Box, the campaign to remove the criminal-history checkbox from job applications because that checkbox was ruling people out before their qualifications were considered. As Angela traced on the episode, Hawaii was at the forefront back in the ’90s, and other states followed.

The idea then widened. Modern fair-chance rules can govern the timing of criminal-history questions, the notice a candidate receives, and the opportunity to explain and add context. Fair-chance policy does not fully prohibit asking about criminal history; instead, it creates safeguards around how and when that history is used.

Where do ban-the-box laws apply?

There is no single national fair-chance law. On the episode, a figure of 37 states and over 150 cities and counties with some version of fair chance was cited. At the federal level, the EEOC publishes guidance on using criminal history in hiring. Designed to prevent discriminatory impact in employment, the guidance was updated in 2012, introducing the individualized assessment concept under Title VII. The Fair Credit Reporting Act, a federal law, also established notice requirements for the use of criminal and other adverse information in background screening. Many state and local governments have passed their own versions of fair-chance laws, each with different requirements.

The result, in Ryan’s experience, is that most multi-state employers find the strictest rule they can operationally live with and apply it everywhere. He cautions that the strictest rule keeps moving. Philadelphia, one of the earliest fair-chance cities, made significant changes in January, including a shorter look-back period for criminal history and more specific notice obligations.

Do fair-chance laws apply to platforms and contractors?

Platform businesses have historically questioned whether employment and hiring laws apply to them at all, since they engage independent contractors rather than employees. On the episode, Angela described how that threshold argument has weakened: litigation and newer ordinances have pushed toward the view that the anti-discrimination principles behind fair chance reach platform work too, and some ordinances now name independent contractors and rideshare drivers directly.

For a platform, this lands on a real tension. Onboarding is built for speed and scale, workers often need to start earning within days, and fair-chance obligations add steps that may extend the path to a start date. The episode’s answer is not to run fewer background checks. The answer is to build fair-chance processes that control what the organization does with the results of a background check.

What does fair chance compliance look like in practice?

Most of the practical work lives in the adjudication matrix, the grid that maps offense types and other factors to the relevant job requirements and ultimate hiring decisions. On the episode, both guests converge on the same problem: matrices tend to be set up once and left alone, while the rules around them keep changing.

A review starts with relevance to the role. If the position involves no driving, do moving violations belong on the rule-out list? It continues with process: which decisions have clearly defined parameters, and which belong in a gray area that requires additional context, candidate input, deliberation, and employer consideration? It ends with ownership, because the costs of a stale process run in both directions: qualified candidates who quietly drop out mid-process, and regulatory, litigation, and reputation exposure when required steps are missed.

Where should employers start?

Both guests give the same first step. Bring the functions that own part of the decision into one conversation, with outside counsel and your background screening company in the loop, and start from a simple fact: the date your adjudication matrix was last changed. As Ryan put it on the episode, “Go pull your adjudication matrix and find out when it was last changed.”

Takeaway: The background check answers the first question. The matrix decides what you do with the answer.

Listen to Ryan and Angela discuss Fair Chance Hiring: A Second Chance, A Second Look on the full episode: Listen here

Get The Fair-Chance Hiring Health Check checklist: Download now

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