A fair chance hiring plan is a documented policy that delays criminal history questions until later in the hiring process, evaluates any record that surfaces on an individualized, job-related basis, and gives every candidate a defined path to respond before a final decision is made. Building one requires leadership buy-in, a rewritten application and job description, a documented individualized assessment procedure, and a compliant adverse action process.
What fair chance hiring actually means
Fair chance hiring is often confused with “banning the box,” but the two are not the same thing. Ban-the-box refers narrowly to removing the criminal history checkbox from the initial job application. Fair chance hiring is the broader practice: it covers the timing of the inquiry, the standard used to evaluate any record that surfaces, and the process a candidate can use to respond before a final decision is made.
Dozens of states and well over a hundred local jurisdictions have adopted some version of a ban-the-box or fair chance law as of 2026, and the specific triggers, covered employer sizes, and required waiting periods vary by location. An organization operating in multiple states needs a plan built around the strictest applicable rule, not a patchwork of local minimums.
Why a documented plan matters more than a verbal policy
A plan that lives only in a hiring manager’s head produces inconsistent decisions, and inconsistent decisions are what create legal exposure under Title VII of the Civil Rights Act. The U.S. Equal Employment Opportunity Commission’s enforcement guidance on arrest and conviction records explains that a blanket policy excluding anyone with a criminal record, regardless of the offense or the job, can have a disparate impact on groups protected under Title VII and is difficult to defend as job-related and consistent with business necessity (EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, eeoc.gov).
A written plan also gives every hiring manager the same standard to apply, which is the difference between a defensible process and a collection of individual judgment calls made under time pressure.
Step 1: Get leadership and legal aligned before writing anything down
A fair chance hiring plan touches recruiting, HR, and legal at minimum, and each function sees a different part of the risk. Recruiting needs a wider applicant pool in a tight labor market. HR needs a process that hiring managers can actually follow. Legal needs the plan to hold up under a Title VII or FCRA challenge. Bringing these three groups together before drafting anything prevents a plan that looks good on paper but breaks down the first time a hiring manager has a real candidate with a real record in front of them.
This is also the point to decide the plan’s actual motivation, whether that is expanding the talent pool, reducing legal exposure, or reflecting a broader organizational commitment to individualized, non-punitive evaluation. That decision shapes every downstream choice, from how the job description is written to how much explanation a candidate gets before a final decision.
Step 2: Redesign the job application and job description
Most fair chance and ban-the-box laws require removing the criminal history question from the initial application and delaying the inquiry until later in the process, commonly after a conditional offer. Beyond the timing requirement, job descriptions built around core competencies rather than a list of disqualifying factors widen the pool of qualified applicants and make the individualized assessment step easier to defend, because the job’s actual requirements are already documented before any record is reviewed.
Practical changes at this stage:
- Remove the criminal history checkbox and any related questions from the initial application.
- Rewrite job descriptions around the skills and competencies the role requires, not a list of assumed disqualifiers.
- Confirm the timing of any criminal history inquiry against the strictest law that applies to where the role is physically performed.
Step 3: Build the individualized assessment procedure using the EEOC’s Green Factors
An individualized assessment is the case-by-case review an employer conducts when a criminal record surfaces, instead of applying an automatic disqualification rule. The EEOC’s guidance points to three factors, often called the Green Factors after the court case that established them: the nature and gravity of the offense, the amount of time that has passed since the offense or since completion of the sentence, and the nature of the job held or sought (EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, eeoc.gov).
A compliant assessment process gives the candidate notice that a record has led to a preliminary exclusion, an opportunity to explain the circumstances or provide evidence of rehabilitation, and a documented decision that weighs that information against the three factors rather than reverting to an automatic rule. The EEOC’s guidance notes that in narrow cases, a targeted screen based solely on the Green Factors, without an individualized assessment, may be defensible, but only where the screen is narrowly tailored to conduct with a demonstrably tight nexus to the specific position (EEOC, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII, eeoc.gov). For most roles, the individualized assessment is the safer and more defensible path.
Most workers who present an imperfect record are not trying to conceal something disqualifying; they are people who know a flawed hiring system tends to reward a clean-looking file over an honest one. GCheck’s 2026 Trust in Hiring Report found that 93% of workers report having embellished or misrepresented some part of their professional experience (GCheck, 2026 Trust in Hiring Report, INCIDENCE, n=1,500). That statistic is about resume embellishment broadly, not criminal history specifically, but it points to the same underlying dynamic: a screening process built around blanket exclusion pushes people toward concealment, while a process built around individualized, transparent review gives them a reason to be forthcoming instead.
Step 4: Document the FCRA adverse action sequence before you need it
Adverse action is the formal notice an employer sends when information in a background check report is going to be used against a candidate in a hiring decision. Under the Fair Credit Reporting Act, this is a two-step process, and both steps apply whenever a third-party consumer reporting agency’s report factors into the decision, not only in cases involving criminal history.
The first step is a pre-adverse action notice, sent before any final decision. It must include a complete copy of the background check report and a copy of the CFPB’s “Summary of Your Rights Under the Fair Credit Reporting Act.” The Federal Trade Commission has stated, in a 1997 staff advisory opinion on the FCRA’s employment provisions, that a five-business-day waiting period after the pre-adverse notice “appears reasonable,” though the statute itself does not name a specific number of days and some state and local laws require longer.
If the candidate does not dispute the finding, or the employer reviews the dispute and still intends to proceed, the second step is a final adverse action notice, which confirms the decision, names the consumer reporting agency that supplied the report, and restates the candidate’s rights, including the right to an additional free copy of the report and the right to dispute its accuracy directly with the reporting agency.
Building this sequence into a documented, repeatable workflow before the first record surfaces is what separates organizations that handle adverse action well from organizations that improvise it under deadline pressure, which is where most FCRA violations originate.
Step 5: Train hiring managers and document every decision
A policy that exists in a compliance binder but not in a hiring manager’s daily practice does not protect the organization. Training should cover what the individualized assessment factors are, how to document a decision, and what a hiring manager cannot ask about during an interview under the applicable ban-the-box timing rules. Consistency across interviewers matters as much as the content of any single decision, since a pattern of uneven application is itself evidence in a discrimination claim.
Documentation should capture which factors were considered, what information the candidate provided, and the reasoning behind the final decision, whether that decision moves the candidate forward or not. This record is what allows an organization to demonstrate, months or years later, that a specific decision was individualized rather than automatic.
Step 6: Decide how the organization will talk about the commitment publicly
Some organizations state their fair chance commitment openly on their careers page or as part of a broader hiring philosophy. Others prefer to build the practice into their process without a public statement. Either approach can be legitimate, but the plan should make this a deliberate choice rather than an afterthought, since it affects how the policy gets communicated to applicants, community partners, and the organization’s own recruiting team.
The business case for building the plan now
Beyond legal exposure, fair chance hiring expands the applicant pool in a labor market where a meaningful share of adults have some form of criminal record. SHRM’s 2021 Getting Talent Back to Work research, conducted with the Charles Koch Institute, found that 85% of HR professionals and 81% of business leaders believe workers with criminal records perform just as well or better in their jobs compared to workers without records (SHRM, “New SHRM and CKI Survey Highlights Value of Workers with Criminal Records,” 2021 Getting Talent Back to Work Report, shrm.org). The same research found that a majority of HR professionals were willing to work with individuals who have criminal records, an increase from where that number stood a few years earlier.
A documented plan is what turns that willingness into a repeatable, defensible practice instead of a one-off exception made for a single strong candidate.
Frequently asked questions
What’s the difference between ban-the-box and fair chance hiring?
Ban-the-box refers specifically to removing the criminal history checkbox from the initial job application. Fair chance hiring is the broader practice, covering the timing of any inquiry, the standard used to evaluate a record that surfaces, and the process a candidate can use to respond before a final decision.
What are the EEOC’s Green Factors?
The Green Factors are three considerations the EEOC’s enforcement guidance points to when evaluating a criminal record in a hiring decision: the nature and gravity of the offense, the time that has passed since the offense or sentence completion, and the relevance of the offense to the specific job.
How long do I have to wait after sending a pre-adverse action notice?
The FCRA does not name an exact number of days. The FTC has stated in a 1997 staff advisory opinion that five business days generally appears reasonable, though some state and local laws set a longer minimum waiting period, and a candidate providing a valid reason for more time is often accommodated on a case-by-case basis.
Does a fair chance hiring plan mean hiring every candidate with a record?
No. It means evaluating each record on its own facts against the specific job, rather than applying a blanket exclusion. Some records will still be disqualifying for some roles when there is a genuine, job-related connection.
Do fair chance hiring laws apply to my organization if I only hire in one state?
Possibly, depending on that state and any local ordinances layered on top of it. Dozens of states and well over a hundred local jurisdictions have adopted some form of fair chance or ban-the-box law, and requirements vary by employer size, industry, and location, so the applicable rule needs to be confirmed for each place a role is physically performed.
ABOUT THE CREATOR
Charm Paz, CHRP
Recruiter & Editor
Charm Paz is an HR professional at GCheck, specializing in background screening, fair hiring, and regulatory compliance. She holds from the Professional Background Screening Association (PBSA) and helps organizations navigate employment regulations with clarity and confidence.
With a background in Industrial and Organizational Psychology, she translates policy into practice to build ethical, compliant, human-centered hiring systems that strengthen decision-making over time.
