Ban-the-box laws: when you can ask about criminal history

Ban-the-box laws, also called fair chance laws, control when in the hiring process an employer may ask about criminal history, and what has to happen before someone is rejected because of a record. For most recruiters the practical answer is the same everywhere: do not raise convictions or arrests in a screen or an interview. Criminal history belongs to the employer's background check process, at the stage the law where the job is located allows, which is commonly after an interview or after a conditional offer.

Below: what these laws actually change, the federal rules from the EEOC and the Fair Chance Act, three state and city examples checked against their own pages, who is exempt, scripts for when it comes up anyway, and a copy-ready assessment template for the stage where it is allowed. For the wider list of questions to keep out of an interview, see illegal interview questions.

What ban the box actually changes

The name comes from removing the conviction check box from the job application. The laws that followed go further, and they generally do three things: move the question later in the process, require the employer to think about the specific record against the specific job, and give the candidate a chance to respond before the decision is final. They do not usually say an employer must hire someone with a record.

Two things are worth separating. Timing rules come from the fair chance law where the job is. The rules about using a record come from Title VII, the federal Fair Credit Reporting Act if a screening company is involved, and often the same state law. A screen that asks nothing about criminal history keeps you clear of the first set entirely.

The federal picture

EEOC guidance on arrest and conviction records

There is no federal law banning criminal history questions for private employers generally. The EEOC's enforcement guidance on arrest and conviction records, issued on April 25, 2012, sets out how Title VII applies when a record is used:

• An arrest is not proof of conduct. The guidance says the fact of an arrest does not establish that criminal conduct has occurred.
• Exclusions have to be job related and consistent with business necessity. The three factors courts have used, known as the Green factors, are the nature and gravity of the offense, the time that has passed since the offense or the completion of the sentence, and the nature of the job held or sought.
• An individualized assessment. Tell the person they may be screened out, give them a chance to explain, and consider what they provide. The guidance lists factors such as the circumstances of the offense, the number of convictions, age at the time, work history before and after, rehabilitation efforts, references and bonding.
• Timing. As a best practice the guidance recommends not asking about convictions on job applications, and limiting any inquiry to convictions for which exclusion would be job related.

The Fair Chance Act for federal agencies and contractors

The Fair Chance to Compete for Jobs Act of 2019 applies to federal hiring and to federal contractors. 41 U.S.C. § 4714 (and 10 U.S.C. § 4657 for Defense contracts) requires agencies to impose, as a condition of the contract, that the contractor may not request criminal history record information about an applicant for a position related to work under the contract, verbally or in writing, before extending a conditional offer. It applies to contracts awarded under solicitations issued after December 20, 2021. The exceptions include positions where a pre-offer inquiry is otherwise required by law and positions requiring access to classified information or with sensitive law enforcement or national security duties. For federal agency hiring, the Office of Personnel Management's rules are at 5 CFR part 920.

We did not verify the current Federal Acquisition Regulation clause number that flows this down into contracts, so if you recruit for a federal contractor, ask the client which clause is in their contract and what it requires of your screening.

Background checks and the FCRA

When a screening company runs the check, the Fair Credit Reporting Act applies. The FTC's guide for employers on background checks says to get written permission first, to apply the same standards to everyone, and before taking adverse action to give the person a notice that includes a copy of the report relied on and a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act". After the decision, the person must be told they were rejected because of information in the report, who sold it, and that they can dispute its accuracy.

Three examples of state and city rules

These are illustrations of how different the details are, not a national list. Most states have some form of fair chance law, many covering only public employers, and dozens of cities and counties have their own.

Notice what the differences mean for a desk that works across states. California and New York City push everything past the offer; Illinois allows the question once someone is selected for an interview. If you recruit in more than one place, the simplest workable rule is the strictest one: nothing before a conditional offer, ever, and the check runs through the employer's process.

Where the rules do not apply

Fair chance laws carve out jobs where a background check is required by other law. The categories that come up most often are:

• Positions where a law or regulation requires a criminal background check, such as many roles in schools, childcare, healthcare and transportation. California's statute lists positions where state, federal or local law requires a check among its exceptions.
• Criminal justice agencies and roles with law enforcement or national security duties.
• Roles requiring a fidelity bond where a specified conviction would disqualify the applicant, which Illinois names expressly.
• Federal contract work involving classified information, under the Fair Chance Act exceptions above.

Even in an exempt role, the EEOC guidance still applies to how a record is used, and the exemption is usually narrower than the client believes. Ask for the specific law or regulation, in writing, before you screen on it.

What to say when it comes up anyway

Criminal history rarely arrives as a question you planned. It arrives because a candidate volunteers it, a hiring manager asks you to check, or a client sets a blanket rule. Wording you can use:

Whatever is said, none of it belongs in the interview notes. A note like "mentioned a DUI in 2019" sits in the hiring record for as long as the file is kept, and it is exactly the kind of line that makes a rejection look like it turned on the record. See what not to write in interview notes.

The assessment at the stage where it is allowed

If you are the employer and the check has come back with something, the decision has to be written down. This worksheet follows the EEOC's factors and the elements California and New York City require. Fill it in before anyone decides, not afterwards to justify a decision already made.

FAIR CHANCE ASSESSMENT — [role] — [candidate initials] — [date]
Conditional offer made:      [date]
Report received:             [date]   Source: [screening company]

The record
  Offense(s) and disposition: [as reported]
  Date of offense:            [ ]   Sentence completed: [ ]
  Time since:                 [years]
  Excluded by law from consideration here? [e.g. non-conviction,
    sealed, pending case — check local rules]

The job
  Essential duties:           [list]
  Access, funds, vulnerable people, vehicles, premises: [ ]
  Specific link between the offense and these duties: [written
    explanation, or "none identified"]

Individualized assessment
  Notice of preliminary decision sent: [date]
  Days given to respond:      [at least 5 business days where required]
  Candidate response received: [date] / none
  Information provided:       [rehabilitation, references, certificate,
    training, work history since, errors disputed]

Decision
  Outcome:                    proceed / withdraw offer
  Reasons, tied to duties:    [ ]
  Decision maker:             [name, role]   Date: [ ]
  Final notice sent:          [date]  FCRA adverse action steps done: [ ]
  Retention: keep with the hiring record — see the retention schedule

Retention matters here: this worksheet, the notice and the response are part of the hiring record, and how long to keep them is covered in how long to keep interview notes.

Setting your process up so this never comes up

• Remove conviction questions and "clean record" wording from application forms, job ads and job board templates.
• Take criminal history out of your screening script entirely, in every state, so nobody has to remember which rule applies today.
• Agree with each client, at intake, who runs background checks, when, and under which law. Put it in the terms.
• Tell candidates at the start what the process includes and when a check happens, so they are not guessing.
• Train anyone who interviews not to search for a record before a conditional offer where that is restricted.
• Route any record that surfaces to the person who owns the background process, and keep it out of interview notes and submittals.
• Check the rules for each state, county and city you hire in, and re-check them at least once a year. They change more often than any other hiring rule.