Q: Can I Ask a Job Candidate About Their Criminal History?

If your business is located in a “ban-the-box” state, then probably not.

States with ban-the-box laws prevent employers from asking about a potential employee’s criminal conviction history. 

Essentially, these laws ban you from asking job candidates about their criminal convictions on applications. It’s a question that’s usually accompanied by a checkbox, where people have to tick yes or no. That’s why it’s called “ban the box.” 

Depending on your state, these laws may also: 

  • Say when you’re allowed to run a background check
  • Forbid you from considering previous convictions when evaluating a job candidate
  • Outline how you should notify candidates about your background check policies
  • Require you to alert a candidate before or after taking “adverse action,” which is when you reject their application. 

For example, some states will let you run a background check or ask about a candidate’s criminal history, but dictate what information you’re allowed to consider—like convictions within the past five years. 

These laws are designed to give all job candidates equal consideration for employment opportunities, regardless of their criminal backgrounds. 

Do ban-the-box laws apply to my business?

They might. 

Currently, 33 states and Washington, D.C., have ban-the-box laws in place. While you should always check with a lawyer to make sure your company is complying with all state and local laws, here’s an overview of each state’s ban-the-box status.

Map of ban-the-box laws by state

States with no statewide ban-the-box laws

  • Alabama
  • Alaska
  • Arkansas
  • Florida
  • Idaho
  • Indiana*
  • Iowa
  • Kansas
  • Maine
  • Mississippi
  • Montana
  • New Hampshire
  • North Carolina
  • South Carolina
  • South Dakota
  • Texas
  • West Virginia
  • Wyoming

* While Indiana does have a ban-the-box law for its executive branch, the state law prohibits any counties, cities, or towns from passing their own ban-the-box laws.

States with ban-the-box laws

StateWhich employers are covered?When can employers ask about a candidate’s criminal history?Can employers make hiring decisions based on criminal history?Do employers have to tell candidates they’re rejecting them because of their criminal background?
ArizonaState agenciesAfter the job application is submitted and initial interviewYesNo
CaliforniaAll employers with at least five employeesAfter a conditional job offer is madeNo, unless it is a business necessity. Employers also cannot consider anything that did not result in a convictionPre- and post-adverse action notices are required, and the employer must hold the position for five days while the applicant responds to the pre-adverse action notice
ColoradoEmployers with 11 or more employees in September 2019; all employers in September 2021Initial applicationYesNo
ConnecticutAll employersInitial employment applications must state that applicants whose records have been erased are not obligated to disclose any criminal historyYes, unless the records have been erasedNo
DelawarePublic employersAfter a conditional offerYes — felonies can be considered for 10 years, and misdemeanors for fiveNo
GeorgiaState employersOnly initial employment applications are restrictedYesYes
HawaiiAll employersAfter a conditional offerOnly the past 10 years, excluding incarcerated periodsNo
IllinoisEmployers with 15 or more employees, and employment agenciesAfter an initial interview or, if no interview is held, a conditional offerYes, unless the record is expunged, sealed, or impounded — or inaccessible to the publicNo
IndianaExecutive branch positionsOnly initial employment applications are restrictedYesNo
KentuckyExecutive branch positionsAfter offering an interviewYesNo
LouisianaPublic-sector employers hiring for an unclassified positionAfter the first interview or conditional offerYesNo
MarylandPublic-sector employersAfter providing an opportunity for an interviewYesNo
MassachusettsAll employersAt or after the interview—but employers cannot ask about anything that did not result in a convictionYes, except for misdemeanor convictions outside of the previous three years or sealed or expunged recordsYes, and pre-adverse action notifications are required
MichiganPublic-sector employersAfter the initial job applicationYesNo
MinnesotaAll employersAfter offering an interview or conditional job offerYesNo
MissouriExecutive branch employeesAfter initial job applicationYesNo
NebraskaPublic-sector employersOnce it’s determined that the applicant meets the position’s minimum requirementsYesNo
NevadaPublic-sector employersEither the final interview, conditional offer of employment, or certification from the administratorYes, except for arrests that didn’t lead to convictions, dismissed or expunged cases, or infractions or misdemeanors that didn’t result in jail timeYes, and the applicant must be given time to respond
New JerseyAll employers with at least 15 employeesAfter the first interviewYes, except for expunged or pardoned convictionsNo
New MexicoAll employersAfter interviewing the applicantYesNo
New YorkAll employers, excluding private-sector employers with fewer than 10 employeesEmployers may include questions on the application but can't make decisions based on the answers, except in certain casesYes, but the employer must extensively assess the applicant and situation to ensure they aren't discriminatingIf the applicant requests a written explanation, the employer must send it within 30 days
North DakotaPublic-sector employersWhen the applicant is selected for an interviewYesNo
OhioPublic-sector employersAfter a conditional offerYesNo
OklahomaPublic-sector employersDuring the interview processYesNo
OregonAll employersAfter the initial interviewYesNo
PennsylvaniaAll employersOnly public-sector employers under the governor’s jurisdiction cannot include a criminal history box on the applicationNo, unless it is a pending case or a felony or misdemeanor conviction. All potential employees should be assessed individually.Yes, employers must notify the applicant in writing
Rhode IslandAll employersDuring the first interviewYesNo
TennesseePublic-sector employersAfter the initial job applicationNo, unless the employer fully assesses the individual applicant and determines a criminal history would directly affect the jobNo
UtahPublic employersDuring the initial interview or a conditional job offerYesNo
VermontAll employersDuring the initial interview or after a conditional job offerYes, but the applicant must be given the opportunity to explainNo
VirginiaPublic-sector employersAfter signing the appropriate waiver and attending an initial interviewYes, but you must first perform an individual assessmentNo
WashingtonAll employersOnce the employer determines the applicant is qualifiedYesNo
Washington, D.C.All employers with 11 or more employeesAfter a conditional offer of employmentYes, but the employer must first assess the applicant and situationIf an applicant asks, the employer must provide them with the Notice of the Right to File a Complaint form and all hiring records
WisconsinPublic-sector employersAfter the employer approves the applicant for the positionYesNo

Remember, some counties or localities may have their own ban-the-box laws, too. If you’re confused by how the law applies to your company, check in with an employment lawyer.

How do ban-the-box laws impact how I do background checks?

Exactly how ban-the-box laws affect your company’s background check policy will depend on where your business is located. 

As noted in the table above, most states simply prevent you from performing criminal background checks until after the initial interview. From there, you can proceed with background checks if that’s important to your business. 

Other states may dictate exactly how any information you learn about your candidate can be used. For example, states that request you do an individualized assessment ask you to consider whether the offense is relevant to the job. While exact considerations may vary by state, typically you will need to think about:

  • The gravity of the offense: Did the applicant threaten other people, for instance?
  • How much time has passed?
  • What kind of job is it? For instance, someone who has stolen money may not be suitable for a position handling company finances.

Some states may further restrict how you’re allowed to use criminal convictions in the hiring process, or they may prevent you from using that information at all. 

This article gives you a good idea of the ban-the-box laws in your state, but be sure to also check your state’s laws to determine exactly how to proceed when hiring employees for your business.

This article was last updated in August 2019.


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