Ban-the-box seems like old news by now as so many states, cities, and counties have enacted some sort of ban-the-box legislation. Most ban-the-box laws address asking about criminal history on job applications. However, some locations are taking it further with Fair Chance Hiring legislation. The Fair Chance Hiring laws address not only when, but how an employer can use criminal history in employment decisions and what obligations they have in making those decisions.

Gainesville, Florida jumped on the Fair Chance Hiring bandwagon just this past December. While there are some employers, such as federal and state government employers as well as a few others, the employers that are not exempt from the new legislation must comply with the ordinance which includes:

1. “An employer may not publish or cause to be published information about a job covered by this article that states or implies that an individual’s criminal history automatically disqualifies the individual from consideration for the job.
2. An employer may not solicit or otherwise inquire about the criminal history of an individual in an application for a job covered by this article.
3. An employer may not solicit from the applicant or otherwise inquire through third-parties about an arrest or criminal accusation made against an individual, other than an arrest or criminal accusation related to domestic violence, which:
   1. is not then pending against the applicant; or
   2. did not result in a conviction, please of nolo contendere, or deferred adjudication.
4. An employer may not solicit criminal history information about an individual or consider an individual’s criminal history unless the employer has first made a condition employment offer to the individual. This does not preclude an employer from explaining to applicants, in writing, the individualized assessment system that the employer uses to consider criminal history.”

As part of the pre-adverse action process, an employer is to let the individual know why the decision was made, give the individual the criminal history records used for the hiring process, and provide that individual with a “reasonable opportunity” to give “additional context” regarding the records to the employer which would go to show the applicant’s “rehabilitation and good conduct” back to the time of the offense.

The employer must also inform the person, in writing, that their decision was based on their criminal history and must include the following verbiage in the notice:

“This notice is provided in accordance with the City of Gainesville Code of Ordinances, Chapter 14.5, Section 14.5-181, which regulates the process and timing of criminal background checks conducted on job applicants.”

As with other similar laws, the individualized assessment must take into consideration the nature of the offense, the person’s age when the offense was committed, how long ago the offense was committed, and any of the person's efforts at rehabilitation and good conduct since the offense. All of these things must be considered in relation to the position.

This ordinance, like similar ordinances, has requirements that go above and beyond the normal FCRA requirements. It is important for employers to know if they do business in areas which have such requirements, what those requirements are, and to make sure that all responsible parties are trained appropriately.

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Sources: littler.com; lewisbrisbois.com