Employers continue to have to navigate a myriad of new Fair Chance or "Ban-the-Box" laws. Maine, Illinois, and New York City are just three of the latest to adopt legislation that impacts how employers consider criminal records when hiring...

Each state or municipality’s requirements are a little different. Some are very general; some are more specific. Some apply only to public employers, some to federal contractors and some to all employers.

Maine: An Act Relating to Fair Chance in Employment

Maine's new law, An Act Relating to Fair Chance in Employment, states that employers cannot request criminal history information on the initial employee application form nor can they state on the application form (or employment ad) that a person with a criminal history need not apply.

Illinois: Senate Bill 1480

In Illinois, however, Senate Bill 1480 requires that employers go through a process to assess whether “the candidate’s job role offers the opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”

The Bill goes on to outline six factors that employers must consider. What’s more, should the employer decide to disqualify the candidate, he must notify the candidate in writing of the “disqualifying conviction(s)” that are the basis of the final decision and the employer’s “reasoning for the disqualification.”

Included in this process is the requirement to notify the candidate of any dispute mechanism that the employer has in place and to provide information on the candidate’s right to file a complaint with the Illinois Department of Human Rights, which was created as part of the bill.

New York City: Fair Chance Act

New York City has had a Fair Chance Act in place since 2015 but has recently revised it to include additional protections for criminal ex-offenders. One of the revisions states that “employers must conduct individualized assessments of a candidate’s or employee’s arrest or pending criminal charges,” and that “automatic bars to employment are prohibited.”

These are just a few of the various types of “fair chance” laws that are being created and revised. Some, including the Philadelphia and Illinois laws, have restrictions on an employer’s consideration of a candidate’s or employee’s credit history. In others, employers are prohibited from asking about or investigating an applicant’s criminal history until after the initial interview or after a conditional offer of employment.

As this is an evolving issue, it is best to keep up with the changes affecting your state and/or municipality. One source to follow is the National Employment Law Project (NELP). Their website (nelp.org) offers helpful information such as the Fair Chance-Ban the Box Toolkit.

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