Fair Chance, Unfair Practices: How Employers Are Undermining the Spirit of Hiring Reform

California’s Fair Chance Act should have marked a turning point in reintegrating people with criminal records into the workforce. By barring employers from asking about an applicant’s criminal history until after a conditional offer is made, the law sought to reduce bias and open doors to opportunity for those who have completed their prison sentences. In practice, a growing number of companies have quietly figured out how to work around it.

Companies are outsourcing their hiring decisions to third-party vendors, skipping required steps, and “laundering” hiring discrimination through layers of legal distance.

The result: qualified, justice-impacted individuals are still being denied opportunities they’ve worked hard to earn. It’s happening silently, without explanation, and often in violation of the law.

---

The Law That Slows You Down – for a Reason

The Fair Chance Act isn’t meant to be efficient. It was designed to be the opposite. 

Sarah Vincent, interim director of the Race and Economic Justice Program at Legal Aid at Work, calls it “a deliberately inefficient law”—meant to disrupt automatic rejection and replace it with thoughtful assessment.

Under the Fair Chance Act, employers must wait until after giving a conditional job offer to run a background check. If they find something they believe is disqualifying, they must notify the applicant in writing and give them five business days to respond. In that window, the applicant can provide letters of rehabilitation, correct inaccuracies, or explain the context of their crime before any final decision is made. In their review, employers must consider the nature of the offense, the time since it occurred, and the nature of the job (often abbreviated as NTN) and provide a written rationale if they rescind the offer.

Often, that’s not what happens – and the rejected candidate is left to figure out what went wrong.

The Rise of Background Check Laundering

Vincent describes a troubling pattern in Fair Chance litigation: employers outsourcing hiring decisions to third-party background check companies, who apply their own grading algorithms or blanket exclusion policies.

“If the applicant is flagged, the employer says, ‘We didn’t make the decision,’” Vincent explains. “When you ask the background check company, they say, ‘We’re not the employer.’ And in that finger-pointing, nobody appears to be accountable to the candidate.”

This workaround undermines the entire point of Fair Chance Hiring. While the law still applies to both parties, enforcement becomes exponentially more complicated. As a result, Legal Aid at Work and other advocates increasingly turn to litigation to hold both employers and vendors responsible.

While many background check companies contribute to the problem, others are working to be part of the solution. Checkr has taken a proactive approach to fair chance hiring by developing tools that reduce bias and increase transparency during the background check process. Instead of automatically disqualifying candidates, Checkr’s “Candidate Stories” feature allows applicants to share the context behind their records, helping employers make informed, individualized decisions. “Every day, my job was about helping candidates understand their rights—and helping employers understand their obligations,” said Johnson Thieu, a TLM alumnus who worked at Checkr. “It was powerful to be part of a company that actually made Fair Chance hiring happen.” By building technology that prompts employers to slow down and review each case thoughtfully, Checkr is showing that background checks can be a tool for inclusion—not exclusion.

Enforcement of the Fair Chance Act doesn’t begin with lawyers—it starts with the applicant, and that’s the problem. “You only find out your rights were violated if you know your rights in the first place,” Vincent says. Even if applicants know their rights, pursuing legal recourse takes time, documentation, and emotional energy—all while the bills pile up and the job market moves on without them.

TLM alumnus William Solan described how demoralizing it was to be rejected from multiple jobs by employers who publicly claimed to support Fair Chance hiring. “They say they’re Fair Chance, but once they see your background, it’s instantly game over,” he said. “If I don’t qualify for a third-shift job at a grocery store, what do I qualify for?”

For people like William, staying focused on survival—rent, stability, self-worth—often means there’s no time or resources left to pursue the accountability the law is supposed to provide.

From Reform to Retrauma: Sandra’s Story

Sandra Johnson spent 15 years in and out of California’s prison system. After her final release in 2007, she did everything right—joining a reentry program, earning her GED, and landing a job as a transportation driver for elderly and disabled clients.

“I told them about my background on day one. The general manager said, ‘We don’t care about that—unless you’ve got something like elder abuse, you’re good,’” Johnson recalls.

For six years, she worked without issue. She won “Employee of the Month,” never missing a shift or receiving disciplinary action. One morning, after the company changed ownership, she was called into a meeting, handed a check, and told her record had disqualified her—retroactively.

“No conversation. No warning. Just an envelope and a security escort,” she says. “I was devastated. I had just moved into a new apartment. That job was my anchor. Losing it almost destroyed me.”

Sandra didn’t stop there. Instead of retreating, she became a force for change. Her own story—and the injustice she endured—became part of the public testimony that helped pass the California Fair Chance Act. Today, Sandra works with Legal Aid at Work, dedicating her professional life to helping other justice-impacted individuals navigate hiring discrimination, challenge unlawful practices, and reclaim their right to work. 

As this article is being written, Sandra was granted a pardon by the Governor of California. Her lived experience now fuels systemic advocacy, ensuring that what happened to her doesn’t happen to others.

Invisible Ceilings and Stalled Careers

For TLM alumni like William Solan, job rejection is so routine it feels inevitable—even when applying to so-called Fair Chance employers.

“I applied to Lowe’s, Stop & Shop, a bunch of places that claimed they were Fair Chance,” William said. “But once they saw my record, it was always, ‘Per company policy, we’re unable to move forward.’ Even though the job had nothing to do with my charges.”

Similarly, Johnson Thieu—another TLM alumnus—spoke about the “promotion glass ceiling” he sees in places like Texas.

“Some companies only run background checks for high-paying roles. That might sound good, but it means you’ll never get promoted. You can work hard, stay out of trouble, but once you reach for that next step—they check your background and you’re out.”

When Ghosting Is Illegal—and Still Happens

One of the most overlooked—but devastating—violations of the Fair Chance Act is ghosting. Under California law, employers must provide written notice before revoking a conditional job offer based on a background check. Yet silence remains a common outcome for justice-impacted applicants—sometimes after weeks of interviews, testing, and preparation.

“We see it all the time,” says Vincent. “Applicants never get a letter. Just silence. Meanwhile, they’ve turned down other jobs, planned for that income, and maybe even moved. It can push someone into homelessness.”

For TLM alumnus Stephen Lewis, the experience was especially disorienting—and demoralizing. After applying to Gordon Food Service in Grand Rapids, Michigan (A region with a Fair Chance Ordinance), Stephen successfully advanced through multiple rounds of interviews, completed a drug test, and was even told to report for orientation. Along the way, he disclosed his felony conviction, and HR assured him it would be reviewed on a case-by-case basis.

“I showed up to orientation like they told me,” Stephen recalled. “But when I got there, they didn’t have any paperwork or a seat for me. The woman asked my name, made a phone call, and said I wasn’t in the system.”

He was told to follow up with HR. He did—multiple times. No one responded.

“I waited around for three weeks, thinking maybe I’d be in the next group. But I never heard back. No official rejection, no email, nothing. Just silence. After everything I went through, it felt like they didn’t even see me as worth acknowledging.”

These moments of erasure—whether in violation of law or simply poor communication—can profoundly impact people who are working hard to reenter society. As Stephen put it, “If the issue was my background, I wish someone had just said that. I would’ve respected their honesty.”

From DEI Collapse to a New Culture of Accountability

In recent years, corporate America has seen a quiet but sweeping retreat from Diversity, Equity, and Inclusion (DEI) initiatives. Where once there were entire departments devoted to equitable hiring and community engagement, many companies have scaled back—or eliminated—these programs altogether. The impact on Fair Chance Hiring has been profound.

DEI officers often served as the primary advocates and points of contact for justice-impacted job seekers. They were the people who knew what Fair Chance Hiring meant, who understood the difference between risk and stigma, and who built pipelines with programs like The Last Mile. Without them, the responsibility has fallen to under-trained HR departments and overburdened legal teams, many of whom are more concerned with avoiding liability than creating opportunity.

“Employers think running a background check makes them safer,” says Vincent. “But safety comes from culture, not compliance. Strong leadership, clear policies, and inclusive teams—that’s what creates real security.”

Johnson puts it more directly: “Jobs are public safety. If people can’t work, what do you think they’ll do?”

In a moment when the national conversation on criminal justice is more visible than ever, the infrastructure designed to translate policy into practice is eroding. And that erosion is not only hurting applicants—it’s hurting employers, too. It’s cutting them off from a skilled, ambitious, and loyal talent pool already overcoming extraordinary challenges to get where they are.

So what do we build in DEI’s place?

The path forward requires more than good intentions or checking boxes. It requires a system-level commitment to accountability, transparency, and transformation. Here’s where we start:

• Elevate community-based pipelines. The Last Mile has demonstrated what’s possible when belief meets preparation. Graduates are not only employable—they’re exceptional. The challenge now is scaling that model across industries and sectors.
• Enforce the law. Employers and vendors must be held jointly responsible for violations of Fair Chance Acts across our country. Outsourcing decision-making doesn’t erase legal obligations.
• Increase transparency. Applicants deserve to know what part of their record is under scrutiny—and how they can respond effectively.
• Expand legal protections. Justice-impacted individuals should be recognized as a protected class under employment law, with the same anti-discrimination safeguards as race, gender, or disability.
• Educated Employers. Resources like Legal Aid At Work’s Fair Chance Toolkit should become standard issue for hiring managers, recruiters, and applicants alike.

The Future of Work Is Giving A Fair Chance

We are at a crossroads. The Fair Chance Act offers a legal framework, but it’s not enough. Without cultural commitment and accountability, the law becomes another piece of paper in a hiring file drawer.

For the nearly 1 in 3 Americans with a criminal record, applying for a job is a test of society’s belief in second chances. Too many organizations are failing that test—not because the applicants lack skills or ambition, but because a system built to protect them has been quietly undermined.

By Robert Roche, VP Of Marketing at The Last Mile.

---

Want articles like this one in your inbox? Subscribe to The Last Mile Marker, a newsletter offering in-depth insights, critical updates, and inspiring stories on criminal justice reform and second chances.