Best Practices and Model Fair Chance Policies

This fair chance policy toolkit includes model examples of:

• a local administrative memo
• local resolution
• local ordinance
• state executive order
• state legislation

As you craft a fair chance policy, including “ban the box,” here are the top 10 principles to follow. These have been distilled from our work with jurisdictions across the country and are applicable to any state or region.

1. Avoid stigmatizing language such as “ex-offenders” or “ex-felons.” Use terms that lead with “people,” such as “people with records.” NELP was educated by the language campaign of the Center for NuLeadership on Urban Solutions on this point.
2. A background check may be unnecessary for a job position because most jobs do not involve unsupervised access to sensitive populations or handling sensitive information. If the background check is not legally required, it may be cost-saving to forego. Even if a background check is legally mandated, it is unnecessary to exempt a position from the majority of these best practices as these practices do not interfere with conducting background checks.
3. Avoid blanket exclusions and instead include an equal opportunity statement on job applications to indicate that a record will not automatically disqualify anyone from a job, unless there is a specific legal exclusion. If a background check is required or if there is a specific legal barrier, inform applicants that “a background check will be conducted for this position.” However, avoid phrases such as “must pass a background check,” or “clean background only” as this language may be interpreted as a categorical exclusion.
4. If a background check is necessary, only consider those convictions with a direct relationship to job duties and responsibilities and consider the length of time since the offense. Follow the best practices of the 2012 U.S. Equal Employment Opportunity Commission guidance in evaluating convictions and avoid consideration of records of arrest not followed by a valid conviction. Do not consider sealed, dismissed, or expunged convictions, misdemeanor convictions where no jail sentence can be imposed, and infractions.
5. Remove inquiries into convictions from the job application. The most effective policy is to delay all conviction inquiries, oral or written, until after a conditional offer of employment. Do not include a provision to permit “voluntary disclosure” of background check information from the applicant. “Voluntary disclosure” circumvents “ban the box” as applicants are often directed to provide background check information by job services.
6. Remove self-reporting questions about conviction history. Discrepancies between self-disclosed information and background checks are often caused by workers’ misunderstanding of their own records, and too often are inaccurate “truth tests.” If a background check will be run, there is no benefit to this additional step, which trips up well-intentioned workers. Prior to any discussion about the applicant’s conviction history, provide the applicant with a copy of any background check.
7. If a job applicant is rejected because of a record, inform the applicant. Provide the applicant with written notice of the specific item in the background check report that is considered job-related and provide the applicant with a copy of the report. Background check reports are often inaccurate, so give applicants the chance to verify or challenge the information.
8. Provide the applicant the right and sufficient time to submit evidence of mitigation or rehabilitation when a record is considered in hiring. Evidence may include letters of recommendation from community members and certificates from programs or education. Hold the position open until the review is complete.
9. Expand the fair chance policy to private employers. To maximize the impact of the fair chance policy, apply the policy to government contractors and private employers. Another method of strengthening the policy for government contractors is to combine it with targeted hiring, as shown in “Community Hiring Model Language” in the Appendix.
10. Combine data collection and effective enforcement. At a minimum, a government agency should have the infrastructure to process complaints and to audit compliance. If the policy applies to private employers, the ability to bring a lawsuit based on a violation of the ordinance may be an effective means of enforcement. With government contractors, the ability to rescind the contract is motivation to comply. Data collection to ensure that the policy is opening job opportunities for people with records will also support enforcement.

Ultimately, a robust enforcement regime will ensure that the law or policy is not just well intentioned, but effective. NELP is currently developing a chapter for the Fair Chance Toolkit on best practices that are specific to enforcement and implementation.

Download Model Policies