Fair Chance Act Becomes Law

Amidst impeachment, the holidays, and Congress working to get a budget passed (and avoid another government shutdown), you may have missed a piece of good news for the estimated 70 million, or nearly one in three, adults in the United States with prior arrest or conviction records.

The President signed the Fair Chance Act into law this past Friday, December 20, 2019, as a part of the defense spending bill that also kept the government open. The Fair Chance Act, introduced by the late Representative Elijah Cummings, will “ban the box” at the federal level, preventing the federal government and all federal contractors from asking about prior criminal history until after an applicant has received a conditional offer. There are, of course, exceptions for law enforcement applicants and for applicants for certain agencies and positions that require criminal background checks.

Many states and localities—thirty-five states and over 150 cities and counties—have  already passed “ban the box” legislation and many private employers have implemented “ban the box” policies. But the federal government is the largest employer in the world, so this is huge. Federal government jobs also come with stability and benefits that can be difficult to find in the private sector.

The Fair Chance Act could help remove an important barrier for jobseekers with records. It’s no shock that it can be difficult for people to find work after incarceration. The Center for American Progress found that 60-75% of people are unemployed one year after being incarcerated. It also goes without saying that employment is key to re-entering society after incarceration. Having a job makes someone less likely to re-offend. And, given that nearly one in three adult Americans have some sort of criminal legal system past, employers can’t afford to overlook all people with prior arrests and records.

The real test now will be how the federal government and contractors actually implement the new law. The research on the efficacy of the “ban the box” laws in practice is mixed so far. If federal agencies and contractors pull conditional offers and move on to the next candidate once the criminal record is discovered, the law won’t actually do anybody any good.

But it is encouraging that the legislation prohibits the inquiry until after a conditional offer has already been made. Hopefully, by the time the candidate is that far along in the hiring process, he or she will have had a chance to prove their skills and a criminal record won’t be a deal breaker.

Even better, this law could be an opportunity for the federal government and contractors to lead and serve as models for other employers in the “ban the box” arena and to show that they can and must hire good potential employees even when they have criminal records. Maybe that’s overly optimistic, but with the bipartisan passage of the First Step Act last year and the bipartisan passage of the Fair Chance Act this year, it’s not crazy to think that the tide is starting to turn for people convicted of crimes. Here’s to a fresh start for the New Year.