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

If your business is located in a “ban-the-box” state, county, or city, then no, you can’t ask a candidate about their criminal history—at least not initially. 

To address barriers to employment that job seekers face, there are restrictions on the kinds of questions employers can ask job candidates and in some cases when questions can be asked—for instance about their criminal history. This question is usually accompanied by a checkbox, where people have to tick yes or no. That’s why it’s called “ban the box.” These laws are designed to give all job candidates equal consideration for employment opportunities. By moving inquiry into criminal history until later in the hiring process, employers can consider a candidate’s skill and qualifications first. Employers get a chance to form an initial impression of an applicant’s character before assessing criminal history, while still retaining discretion to hire the most qualified candidate. 

The federal Fair Chance Act prohibits most federal agencies and contractors from asking about arrest and conviction history on job applications. States or localities with ban-the-box laws generally prevent all employers from asking about a potential employee’s criminal history on an application.

Depending on where you are located, these laws may also: 

  • Say when you’re allowed to run a background check
  • Require a conditional job offer to be made before inquiring about criminal history
  • 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 allow  you to 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.  Some states with ban the box laws permit employers to consider background checks, but only if employers make an “individualized assessment” of the results—weighing factors like how long ago a conviction took place, what the conviction was for, if it has a direct relationship to job duties, and how old the applicant was at the time.  These laws are intended to help ensure that applicants are not unfairly impacted by actions they may have taken when they were young adults, among other things. 

Can my business choose to “ban-the-box” even if it’s not required in my state?

Yes. While these laws are in place to encourage employers to assess candidate qualifications before denying employment, many companies have chosen to “ban-the-box” or adopt fair chance policies as best practices in hiring. 

Some employers ask applicants about their criminal history as a way to weed out candidates who have a prior arrest or conviction, without considering information about the crime, how long ago it happened, or what the candidates may have been doing since. Because of this, applicants with criminal records face higher unemployment rates. Employment has been proven to be a key factor in reducing recidivism, which is the likelihood someone will commit another crime. By choosing to ban the box even when not required, employers can ensure that they are not preemptively ruling out a qualified applicant just because they have an arrest on their record.

Many companies have chosen to remove the “box” on their applications and adopt a fair chance hiring policy because it made sense. Through these policies, organizations can expand talent pools to hire qualified employees, while also giving candidates a fair chance at a job. 

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

It is likely that they do. 

Currently, 36 states, Washington, D.C., and over 150 cities and counties 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.

States with no statewide ban-the-box laws

Alabama

Alaska

Arkansas

Florida

Idaho

Indiana*

Iowa

Mississippi

Montana

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 5 employees nationwideAfter a conditional job offer is madeNo, unless it is a business necessity. Employers also cannot consider anything that did not result in a convictionYes, pre- 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
ColoradoAll private EmployersOnly initial employment applications are restricted YesNo
ConnecticutAll employersAfter an employment application has been completed. Initial 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
District of ColumbiaAll employers with at least 10 employees in D.C. (except for the courts)After a conditional offerYes, for a legitimate business reason that is reasonableYes, notice required when an employer takes an adverse action after a conditional offer of employment
GeorgiaState employersOnly initial employment applications are restrictedYesYes
HawaiiAll employersAfter a conditional offerYes, but only if they make an individualized assessment of the conviction in relation to the job duties. Offer may be withdrawn if the record bears a rational relationship to the duties of the position. Felonies can only be considered for 7 years and misdemeanors for 5, excluding incarcerated periods.No
IllinoisEmployers with at least 15 employees, and employment agenciesAfter notification of an initial interview or, if no interview is held, a conditional offerNo, unless  there is a substantial relationship between the criminal offense and employment sought. Or if hiring would involve unreasonable risk. Individualized assessment required.Yes, Pre- and post-adverse action notices are required. The employer must also consider any information by the applicant before making a final decision
IndianaExecutive Branch Only initial employment applications are restrictedYesNo
KansasExecutive Branch After initial interviewYesNo
KentuckyState employersAfter offering an interviewYesNo
LouisianaAll employersEmployers cannot request or consider an arrest or charge that did not result in a conviction, if such information is received from a background check. Yes, employers may consider other criminal history in hiring decisions, subject to making an individualized assessment of relevant factors, such as how long ago the arrest took place and how old the applicant was at the time. Yes, employers must make available to applicants any background check information used during the hiring process upon written request from the applicant. 
MaineAll private employersDuring an interview or after determining that they are otherwise qualified, after initial applicationYes, but must allow applicant to explain circumstances of conviction including post- conviction rehabilitationNo
MarylandEmployers with at least 15 full-time employeesDuring or after an in person interviewYesNo
MassachusettsAll employersDuring 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 employersAfter the initial job applicationYesNo
MinnesotaAll employersAfter offering an interview or extending conditional job offerYesYes, public employers only 
MissouriExecutive branch employeesAfter initial job applicationYesNo
NebraskaPublic employersOnce it’s determined that the applicant meets the position’s minimum qualificationsYesNo
NevadaPublic 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 employersPrivate employers- after review of application. Public employers- After applicant has been selected as a finalist for the positionYes. However, public employers cannot consider misdemeanor convictions not involving “moral turpitude”No
New YorkPrivate employers with at least 10 employees and all public employersEmployers 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 discriminating. Individualized assessment required and multiple specific factors must be weighed in the decision. Written explanation for denial of employment if requested by the applicant
North DakotaPublic employersAfter applicant is selected for an interviewYesNo
OhioPublic employersAfter initial applicationYesNo
OklahomaPublicemployersDuring the interview processYesNo
OregonAll employersAfter an initial interview or conditional offer of employmentYesNo
PennsylvaniaAll public employers under governor’s authorityOnly public-sector employers under the governor’s jurisdiction cannot include a criminal history box on the applicationYes, unless the arrest did not result in a conviction; conviction annulled, expunged, or pardoned; or conviction does not relate to applicant’s suitability for employmentNo
Rhode IslandAll employers with at least 4 employeesDuring the first interview, after the initial job applicationYesNo
TennesseePublic 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 once applicant has been deemed qualified for the positionYes, but the applicant must be given the opportunity to explainNo
VirginiaAll employersEmployer cannot require applicant to disclose any information regarding marjiuana related arrest or convictionYes, unless related to marijuana arrest or convictionNo
WashingtonAll employersOnce the employer determines the applicant is qualifiedYes, however, employers cannot have automatic disqualifiers or reject an applicant for failing to disclose a criminal recordNo
WisconsinPublic employersAfter the employer approves the applicant for the positionYesNo

Remember, counties or localities (for example, New York City) may have their own ban-the-box laws, too. If you’re not sure whether or 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 prevent you from performing criminal background checks until after the initial interview.  From there, you may proceed with background checks if you have deemed that it is necessary due to the high risk operations of your business.  It’s worth noting, however, that many jobs do not require an employee to be singularly responsible for a high risk business function (e.g. accessing sensitive customer information or supervising a group of children), so in many cases a background check may be unnecessary for a job position. 

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

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