Ban the box laws prohibit employers from asking about criminal history on job applications and restrict when you can run background checks during the hiring process.
At iprospectcheck, we specialize in background screening compliance and work with employers every day to help them build hiring processes that meet these requirements.
In this guide, we will walk you through what ban-the-box laws are, which employers they apply to, how requirements vary by state, and what steps you need to take to stay compliant.
Key Takeaways
- Ban-the-box laws prohibit you from asking about criminal history on initial job applications and regulate when you can run background checks, and failing to comply can expose your business to fines, investigations, lawsuits, and reputational damage.
- To stay compliant, remove criminal history questions from applications, train your hiring team, document decisions, follow adverse action procedures and the individualized assessment steps if you decide deny someone employment due to their criminal record, create a consistent evaluation policy, and monitor state and local law changes.
- iprospectcheck helps you build a compliant screening process by timing background checks correctly, aligning your workflow with local regulations, and reducing your risk across multiple jurisdictions.
What is Ban-the-Box?
The ban-the-box movement began as a nationwide campaign to remove criminal history questions from job applications.
Today, 37 states and more than 150 cities and counties have adopted some form of “ban the box” law, which removes conviction and arrest questions from initial applications and delays background checks to a later stage in the hiring process.
Why Ban-the-Box Laws Matter
For many qualified job seekers, being asked about criminal history at the very start of the application process can become an immediate barrier to employment.
Ban-the-box laws are designed to change that. Their purpose is to ensure applicants are evaluated based on their qualifications, skills, and experience first before criminal history is considered later in the hiring process.
Depending on the jurisdiction, this may mean waiting until after an initial interview or until after extending a conditional job offer.
Who Do These Laws Apply To?
Ban-the-box laws do not apply uniformly across the country. Coverage depends on the specific state law or local ordinance.
In some jurisdictions, ban-the-box requirements apply only to public employers, such as state agencies, cities, and counties.
In others, the laws extend to private employers, sometimes with minimum employee thresholds such as four, five, or fifteen employees.
Certain industries may also be partially or fully exempt.
For example, positions in law enforcement, roles requiring federal security clearances, jobs involving vulnerable populations, or positions where another law mandates a criminal background check may fall outside the scope of local fair chance requirements.
Federal contractors are subject to separate federal fair chance requirements when hiring for work related to federal contracts, which can add another layer of compliance.
Because coverage varies by location, employer size, and industry, you should review the specific laws in each state or city where you hire.
When operating in multiple jurisdictions, many employers choose to align their policies with the most restrictive applicable standard to reduce compliance risk and maintain consistency across locations.
State-by-State Variations
Some cities and states have already enacted legislation to eliminate criminal records inquiry checkboxes from pre-employment applications.
Not all ban-the-box laws look the same. The requirements can differ dramatically, depending on where you operate.
Some states only restrict public employers, while others include private businesses.
California, for instance, prohibits most employers from asking about criminal history until after a conditional job offer.
In New York City, employers have to conduct bifurcated background checks (employment history, education history, reference checks, etc.) and wait to conduct criminal records checks until after they have extended conditional offers of employment.
The size of the business matters in some states. For example, certain laws only apply to employers with 15 or more employees, while others cover all businesses regardless of size.
Timing requirements also vary. Some jurisdictions allow background checks after the first interview, while others require waiting until a conditional offer is made.
There are also industry-specific exemptions. Positions in law enforcement, healthcare facilities, or jobs working with vulnerable populations may be exempt from ban-the-box requirements, allowing employers to ask about criminal history upfront.
Because these laws are constantly evolving, employers operating in multiple states need to follow the requirements that apply in each location, and consider adopting the strictest standard where feasible.
You can check your state’s specific requirements through your state labor department.
What Happens If You Don’t Comply?
If you violate ban-the-box laws, you’re exposing your business to serious consequences.
Penalties vary by jurisdiction and can range from hundreds to tens of thousands per violation, plus other remedies.
Enforcement agencies in some jurisdictions actively investigate complaints and can come after non-compliant employers directly, without waiting for an applicant to file a lawsuit.
On top of the legal exposure, violations can damage your company’s reputation and make it harder to attract the quality candidates you’re looking for.
How to Stay Compliant
1. Revise Your Application Forms
Remove any questions about criminal history, arrests, or convictions.
Log into your applicant tracking system or online job application and search for any fields, checkboxes, or dropdown menus that ask about criminal history.
If you use a third-party platform, check both the default application template and any custom forms you’ve built.
2. Train Your Hiring Team
Make sure your managers and recruiters know when they can and cannot ask about criminal history.
Give them scripts for handling difficult conversations and clear guidelines on how to conduct an individualized assessment.
3. Document Everything
For every candidate who reaches the background check stage, record the date the check was initiated, what the results showed, and the specific reasoning behind your hiring decision.
4. Follow Adverse Action Procedures
If you intend to take adverse action (e.g., denial of employment, rescinded offer, termination, denial of promotion) based in whole or in part on a consumer report, you have to follow the required steps:
Step 1: Pre-Adverse Action Notice
Before taking the adverse action, you must provide the applicant or employee with:
- A written pre-adverse action notice
- A copy of the consumer report
- A copy of “A Summary of Your Rights Under the FCRA” (current CFPB version)
- In a growing number of jurisdictions, you must identify the specific conviction(s) that form the basis for the preliminary decision
Purpose
To give the individual a meaningful opportunity to:
- Review the report
- Identify inaccuracies
- Dispute incorrect or incomplete information
Waiting Period
The FCRA does not specify a number of days. Best practice is:
- At least 5 business days
- Longer if a dispute is raised
You must wait a reasonable period before making a final decision.
Step 2: Consider Any Dispute
If the individual disputes the report:
- The employer should pause the final decision.
- The consumer reporting agency (CRA) has up to 30 days to reinvestigate (with limited extensions).
- The employer should review updated findings before proceeding.
Step 3: Adverse Action Notice (Final Notice)
After waiting a reasonable period and deciding to proceed, you must provide the applicant or employee with a final adverse action notice that includes:
- The name, address, and phone number of the CRA that supplied the report
- A statement that the CRA did not make the decision and cannot explain why the decision was made
- Notice of the individual’s right to obtain a free copy of the report from the CRA within 60 days
- Notice of the right to dispute the accuracy or completeness of the information with the CRA
This notice may be provided:
- In writing
- Electronically (if E-SIGN compliant)
- Or orally (though written is strongly recommended)
Timing Summary
- Disclosure & authorization (before the report is obtained)
- Pre-adverse action package
- Reasonable waiting period
- Final adverse action notice
Common Liability Triggers
- Sending pre-adverse and adverse notices on the same day
- Failing to include the Summary of Rights
- Using outdated Summary of Rights forms
- Taking action before allowing time to dispute
- “Batch” automation without human review
5. Follow the Individualized Assessment Steps
If you decide to deny someone employment based on their criminal history, follow the individualized assessment steps in compliance with the U.S. Equal Employment Opportunity Commission Guidance.
An individualized assessment is a structured review conducted before excluding an applicant based on criminal history.
It is designed to ensure that exclusion decisions are job-related and consistent with business necessity under Title VII of the Civil Rights Act.
Step 1: Apply the Green Factors
Before making a disqualification decision, the employer must evaluate the three factors established in Green v. Missouri Pacific Railroad Co. (1975):
- The nature and gravity of the offense or conduct
- The time that has passed since the offense, conduct, and/or completion of the sentence
- The nature of the job held or sought
If, after applying these factors, the record appears potentially disqualifying, the employer should proceed to an individualized assessment.
Step 2: Notify the Individual
Inform the applicant that they may be excluded based on specific criminal history information and provide notice that they have an opportunity to respond with additional context or clarification.
This step often coincides with the pre-adverse action process if a consumer report was used.
Step 3: Provide an Opportunity to Respond
Allow the individual to submit mitigating or explanatory information. Relevant information may include:
- Facts and circumstances surrounding the offense
- Number of offenses
- Age at the time of conviction
- Evidence of rehabilitation
- Employment history before and after the offense
- Character references
- Whether the record is inaccurate
- Whether the offense is related to job duties
The opportunity to respond must be meaningful and not merely procedural.
Step 4: Evaluate the Additional Information
Consider all information provided and determine whether exclusion remains job-related and consistent with business necessity.
The analysis should connect the conduct to specific job duties, level of supervision, access to money or sensitive data, interaction with vulnerable populations, workplace safety considerations, and other relevant risk factors.
Step 5: Document the Decision
Maintain documentation reflecting:
- Application of the Green factors
- Information provided by the applicant
- The rationale for the final decision
Documentation should demonstrate that the decision was individualized, consistent, and nondiscriminatory.
Step 6: Proceed with Adverse Action if Applicable
If you decide to proceed with exclusion, ensure compliance with Fair Credit Reporting Act requirements if a consumer report was used.
Apply policies consistently across similarly situated candidates.
An effective individualized assessment process is structured, job-specific, fact-based, documented, and consistently applied.
If an applicant files a complaint, this documentation shows that you followed a consistent, lawful process and based your decision on legitimate factors.
6. Create a Consistent Policy
Write down exactly what factors your team should consider when evaluating criminal history, such as the type of offense, how recent it was, and whether it’s relevant to the job.
When everyone follows the same written criteria, you’re less likely to make inconsistent decisions.
7. Monitor Changes to Ban-the-Box Laws
Ban-the-box laws are expanding, and new jurisdictions are adopting them every year.
Check your state and local labor department websites regularly for updates, or work with an employment attorney who can flag changes that affect your hiring process before they take effect.
8. Partner With a Reputable Background Screening Provider
Work with a compliance-focused background check provider, such as iprospectcheck, that understands ban-the-box timing requirements across jurisdictions.
A knowledgeable screening partner can help you structure your workflow correctly, initiate checks at the appropriate stage, and reduce your risk of costly compliance mistakes.
Rethinking Ban-the-Box
Ban-the-Box and Fair Chance laws were created to promote fairness, but research shows they may increase risk, reduce transparency, and hurt the very applicants they aim to help. Here’s our perspective.
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Across the country, well-intended policies like Ban-the-Box, Fair Chance laws, and seven-year limits on background checks have gained traction in the name of helping people with criminal histories secure employment.
The motive is admirable. Everyone wants a society where people who have made mistakes in the past can rebuild their lives with dignity and opportunity. The problem is not the intention. The problem is that these policies are not delivering the results their supporters promise, and in many cases they create new risks for employers, workers, and the public.
The first issue is simple. Employers are legally responsible for the safety of their customers, their employees, and, in many cases, the vulnerable populations they serve. Yet these laws often restrict employers from seeing the very information they are accountable for evaluating.
Businesses can face lawsuits for negligent hiring, workplace violence, financial misconduct, and failures to protect the public. At the same time, they are told to make hiring decisions with only fragments of a candidate’s history. A policy that expects employers to ensure safety while withholding relevant criminal information puts them in an impossible position.
A second problem has been documented repeatedly by researchers. When employers are told they cannot ask about criminal history until late in the hiring process, or when reports are artificially limited to seven years, some employers respond with statistical assumptions. They are unable to differentiate between applicants with a criminal record and applicants with no record at all.
This results in well-documented declines in callback rates for young minority men regardless of their actual criminal history. This is one of the most damaging unintended consequences of Ban-the-Box. It harms innocent applicants who should have been helped, not hurt.
A third issue is measurable effectiveness. Multiple rigorous studies have searched for meaningful improvements in employment rates, recidivism, or earnings after the adoption of these laws.
The results are weak at best and often negative. Some states show small improvements in very specific metrics, but others show no change or even reduced earnings. When public policy fails to produce reliable, positive outcomes, it is time to reconsider the approach.
Supporters of these laws often assume that older offenses have no relevance. But the seven-year limit builds a false sense of irrelevance into the law. Serious offenses do not automatically lose their impact after a set number of calendar days.
Employers must evaluate the nature of the offense, the time elapsed, and its relevance to the specific job. Federal guidance and the Fair Credit Reporting Act already require this individualized assessment. Restricting the information itself sabotages the process that the law requires employers to follow.
It is also important to acknowledge the operational reality. A confusing patchwork of local and state regulations increases compliance costs and exposes employers to legal risk. Smaller businesses often lack the resources to navigate this maze and default to conservative hiring decisions simply to avoid violations. Complexity does not create fairness. It creates more opportunities for mistakes and lawsuits.
The right path forward is not to hide information but to use it responsibly. Individualized assessments, rehabilitation evidence, and transparent adverse-action processes already provide a structure that balances second chances with public safety. These tools promote fairness without asking employers to make blind decisions.
If our goal is to support successful reentry into the workforce, we should focus on proven solutions. Education, job training, mentoring, and incentives for employers who hire rehabilitated individuals have far stronger track records than policies that eliminate access to job relevant data. Opportunity is a shared goal, but it should not come at the expense of safety or accuracy.
Ban-the-Box, Fair Chance laws, and seven-year reporting limits were created with compassion. Compassion alone cannot guide policy. Results must guide policy. Right now, the results tell us that these measures are not working as intended. It is time to rethink them.
Trust iprospectcheck for Compliant Background Checks
Navigating ban-the-box laws across multiple jurisdictions is complex, and the rules keep changing.
iprospectcheck helps you stay ahead of compliance requirements with background screening solutions designed to fit your hiring process.
Whether you need criminal background checks timed to meet local regulations or guidance on building a compliant screening workflow, our team is here to help.
Contact us today to learn more: (888) 509-1979
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.
FAQs
Is Ban the Box the same as Fair Chance Hiring?
Although “ban the box” and “fair chance” are often used synonymously, Fair Chance Hiring goes beyond simply removing a checkbox from an application.
While ban-the-box laws focus on the timing of criminal history questions, fair chance laws often regulate how employers evaluate and use conviction records. These laws may:
- Require employers to conduct individualized assessments before denying employment based on a criminal record
- Limit criminal history discussions during interviews
- Restrict certain language in job advertisements
- Require adverse action notification before a final adverse decision
In short, fair chance hiring is designed to ensure candidates are evaluated on their skills and qualifications first, and that criminal history is considered thoughtfully and consistently later in the process.
Because these requirements vary widely by state and city, employers should review the specific laws that apply in each hiring location.
What does the EEOC require when considering criminal history?
The EEOC encourages employers to evaluate criminal history on a case-by-case basis rather than using blanket disqualification policies.
This means considering the severity of the offense, how much time has passed, and whether the conviction is relevant to the specific job.
Blanket exclusions based purely on criminal history can disproportionately affect minority applicants and may violate Title VII of the Civil Rights Act.
Do ban-the-box laws apply to remote employees?
In many cases, the law that applies depends on where the employee will work, not where your company is headquartered.
If you are hiring a remote employee who will perform work in a state or city with ban-the-box requirements, you may need to follow that jurisdiction’s rules, even if your company is located elsewhere.
Because remote hiring has expanded significantly, employers should review the laws in the state and local area where the position is based before initiating any criminal history inquiry.
Are expunged or sealed records covered under ban-the-box laws?
In many states, expunged or sealed records cannot be considered in hiring decisions at all, regardless of ban-the-box timing rules.
Employers should avoid requesting disclosure of records that the law treats as sealed, expunged, or otherwise legally protected.
Doing so may violate both ban-the-box laws and separate record-sealing statutes.
